for no other reason, are to be put into the Constitution and pilloried in this manner. The provision proposed to be inserted in the Constitution, reads as follows:

That, for the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence, while employed in the army of the United States, or while navigating the waters of this State, or of the United States, or of the high seas, or while a student of any seminary of learning.

Is it true, that a person ever gains the right of voting by mere presence, local presence, in any place? Has any man ever gained it?

I

Mr. HUNTINGTON, of Northampton. make the question, whether residence is not an important element ?

Mr. DANA. It is an essential element, but not conclusive. I wish to ask, whether the mere fact of presence in a place, did ever make any man a voter ? Certainly not, in law. Why say of a student, that mere personal presence shall not make him a voter? What have students done? I have suffered under the voting of students. I have seen in Cambridge, where I live, students come up, and, almost to a man, vote right against the ticket I vote, and in favor of the ticket that my friends from Cambridge, on the opposite side of the House, support. It would have been a source of pleasure to me, if those students had voted the same ticket with myself, for I should have gained, and my party would have gained, but to insert in the Constitution a provision which would shut them out from the polls, is the very last thing I should undertake to do in the discharge of my duty, to accommodate myself or any one else. I cannot believe that the Committee would, for a moment, yield to an argument of that kind, upon whichever side it was pressed. It is very plain, that some grievance has arisen from the conduct of the students. It is said that students have not behaved well. I do not see how these resolves are going to mend that. We only propose to say who shall vote, and not to say how they shall vote or behave themselves. I have inquired of the friends of these resolves, what purpose they wish to answer. I never can and never will vote for a resolve of this Convention, unless I can fairly understand what it means. If there is any ambiguity resting over it, if that ambiguity is of a kind which its friends decline to remove, then I never will vote for it. There is ambiguity resting over these resolves. They may be clear to my own mind, but legal gentlemen have doubts about them. It is very plain that the gentleman from North Brookfield, (Mr. Walker,) and the

to

[July 5th.

gentleman from Williamstown, (Mr. Duncan,) consider them as of great importance, as a remedial measure which is to answer a great purpose, and that is the ground upon which they press them. The gentleman from Taunton, (Mr. Morton,) says, that he supports them because they are very innocent and harmless, and that they are not going to produce any change whatever, but that they simply declare the law as it stands-a simple principle of law, that personal presence shall not make a voter. On the one hand they are innocent and harmless, and on the other they constitute an important remedy for a great evil. If these resolves are what the gentleman from North Brookfield, (Mr. Walker,) believes, the gentleman from Williamstown, (Mr. Duncan,) hopes, and the gentleman from Lenox, (Mr. Bishop,) thinks they are, then I submit to the Committee that they are wrong, because they will exclude students from voting under any circumstances. If they mean simply what the gentleman from Taunton, (Mr. Morton,) supposes they mean, then they are nugatory, and I should not wish to insert anything into the Constitution which was entirely nugatory.

cannot

think that any gentleman will bring his mind to believe, that these resolves, so urgently pressed before this Committee, discussed, recommitted and renewed, are intended merely to declare the axiom which every man knows, that personal presence does not make a residence. So much note of preparation never came from so slight a cause as that. Something more is meant. I have endeavored to ascertain, from the friends of these resolves, whether they considered them merely a declaration of the general principle, that presence shall not make a voter, and I cannot learn from them that such is their understanding. I have tried to ascertain from the friends of the measure, whether they considered that the effect would be to exclude students, and I cannot ascertain that they so consider it. I cannot ascertain their construction of them, and I am driven to the necessity of saying, that I cannot vote for anything over which an ambiguity rests, and which the friends of the measure do not clear up.

Mr. DUNCAN, of Williamstown. For the information of the gentleman for Manchester, (Mr. Dana,) I would say that I intended, when I introduced this order, to convey the interpretation that is given by the gentleman from Lenox, (Mr. Bishop). I did not intend to disguise anything, or have any concealment about this matter. The gentleman, I think, has very plausibly misunderstood me. To me, this matter is perfectly plain. In Maine, they understand it as I do, and so in New York, Michigan, and in Cali

fornia, and the meaning is simply this, that a student cannot acquire the right to vote in any town where such institution of learning may be located. That is the construction put upon it in Maine and New York. I hope now that the question is fairly understood.

Mr. DANA. I am very much obliged to the gentleman, indeed, for his explanation. We are told, by the gentleman over the way, that he puts the construction upon it which is put upon it by the gentleman from Lenox, (Mr. Bishop,) that a student shall not acquire the right of voting in any place where he is residing, for the purposes of education, no matter what the circumstances may be, though they may be sufficient to give him a domicile, and to make him taxable there. But the gentleman says, that is the provision in Maine and New York. Nearly the whole argument made in favor of these resolves, has been made upon a very opposite consideration, that it does not intend to effect any such thing, but is a simple declaration to the selectmen, of a well-known principle of law which exists everywhere. That is the ground upon which the learned gentleman from Northampton, (Mr. Huntington,) the gentleman from Taunton, (Mr. Morton,) the gentleman from Fitchburg, (Mr. Wood,) and other gentlemen have supported these resolves. I ask these gentlemen, if the construction is that given to this matter by the gentleman from Williamstown, (Mr. Duncan,) whether they can vote for them. It is now stated by them clearly what they intend, and what their object is. The object is that students shall not vote in the place where they reside. Let us take it so. They have given a construction to their own phraseology.

I am

Mr. DUNCAN. That is my construction, I will say, if the gentleman will allow me. not accountable for others.

Mr. DANA. The gentleman from Williamstown, and I suppose also, the gentleman who reported this resolve to the Convention, intended to carry out this object that I have named. The question then is, whether we will adopt a provision that students shall not vote in the place where they reside. I wish it were put in plain terms like the following:

Resolved, That no person shall vote in the place where he is residing while he is a member of a seminary of learning.

I think that would be a doubtful proposition. In the first place, there would be an invidious distinction against students. You would allow a man, who was a resident of the place for the purpose of learning a trade, to vote at the age of twenty-one. If he was there as an apprentice to

[July 5th.

a bricklayer he could vote, but he could not if he was pursuing a literary or scientific course of study.

Mr. DUNCAN. I would ask the gentleman if the statute does not make a distinction between that class of men and other classes of men.

Mr. DANA. I do not quite understand the question which is put by the gentleman.

Mr. DUNCAN. Does not the gentleman understand, that by the statute there is a distinction between students and another class of citizens, in reference to the contraction of debts.

Mr. DANA. The statute does make a distinction in that case. But that is a very different matter from the present. The "inalienable right of voting," as it has been called here, is quite a different thing from the inalienable right of contracting debts. [Laughter.] That statute is passed in kindness to them. This kindness, which takes away the right of voting for a period of four years, is a kindness which I think we should not agree to exactly.

Mr. DUNCAN. I would like to ask the question if any debts can be collected of students?

Mr. DANA. It is pretty difficult. [Laughter.] I do not know whether it will be aided at all by preventing their voting. But here we are undertaking a very difficult operation. We have in Cambridge a great many graduates; almost as many graduates as under-graduates, perhaps. There is the Law School, the Scientific School, and the Divinity School. The number of the students in the Scientific School is constantly increasing. They are men of years, often; men who have been engaged in business,-engineers and chemists. Some of them come there with their families, and pursue courses of lectures; and sometimes they bring their families with them, and they sometimes own property there. They are very respectable citizens; but, by this provision, we mean to say to them, that they shall not vote there. As to the general principle, in saying that students shall not vote where they reside, there might be a difference of opinion. But it strikes me that it would be a very invidious distinction. We do not wish to make these invidious distinctions. We wish to make one general and uniform rule, and to carry it out.

Then again, see at what cross purposes we are playing here. The gentleman from Williamstown, (Mr. Duncan,) is advocating the measure because it would cut off the students from voting; and the gentleman from Dedham, (Mr. Wilkinson,) who is a friend of the measure, has moved to apply it to all persons who reside in a place for any temporary purpose. So that the gentleman from Dedham is putting into the same category

all persons who reside in a place for a temporary purpose, and the gentleman from Williamstown is trying to kill off the students. It strikes me, if this matter is correctly reported,—and we know that it will be,—any gentleman who will come to look at it in a disinterested manner, will say: here have been a number of lawyers engaged in making and amending a law on opposite constructions and at cross purposes. And it will be said, too, that if the lawyers could not understand it, it is not to be presumed the selectmen will be more enlightened than they have been heretofore. What can be more applicable than the answer given by the supreme court to the question propounded to it by the House of Representatives. The question was with regard to this very point, whether persons who were residing in any place as students would have a right to vote, and the answer was, in part, as follows:

"The question, therefore, whether one residing at a place where there is a public literary institution, for the purposes of education, and who is in other respects qualified by the Constitution to vote, has a right to vote there, will depend on the question whether he has a domicile there. His residence will not give him a right to vote there, if he has a domicile elsewhere; nor will his connection with a public institution, solely for the purposes of education, preclude him from so voting, being otherwise qualified, if his domicile is there."

In another place it says:—

"In that case, we are of opinion, that his going to a public institution, and residing there, solely for the purpose of education, would not, of itself, give him a right to vote there, because it would not necessarily change his domicile; but in such case, his right to vote at that place would depend upon all the circumstances connected with such residence."

case.

Now, there is the decision of the supreme court given in answer to this very Williamstown There is not a selectman in Williamstown who has not read that decision; and that decision makes it as clear as day, that residence for purposes of education of itself, does not give the right of voting. They have had this decision before them ever since 1843, and I suppose there is not a selectman in Massachusetts that does no know, and has not known for the last ten years, that the mere residence for purposes of education does not, of itself, make a man a voter in the place. Now, would any man propose to put into the Constitution that which is so well settled?

I will make one other remark which I ought to have made before. When that answer came from the supreme court back to the legislature, there was

[July 5th.

no legislation on the subject. These Williamstown gentlemen have been before the legislature, as I understand, and they have obtained from the legislature no statute. Is that not prima facie evidence against them? They have been here before the legislature having majorities of different parties, and presented the decision of the supreme court, and they have obtained no statute. Would it not have been better to make a statute than to put such a provision into the Constitution? For, if the court put an unexpected construction upon a statute, it can be modified. But no legislature has given a statute, and that is a strong reason why we should not adopt such a provision. I suppose that those who wished such a statute passed, wished to shut out the students from voting altogether. The legislature did not intend that it should be done, and we do not intend that it shall be done. No gentleman has advocated the position which the gentleman from Williamstown takes, and which it is supposed by some of the friends of the measure it will result in.

I, therefore, hope, Mr. Chairman, that so far as the students are concerned, we shall strike out the clause entirely. It is not a harmless thing. It will be considered by the selectmen, as the gentleman from Williamstown now understands it. Sir, the selectmen will say, it cannot be that these four hundred grave men discussed for a whole day, and finally adopted into the Constitution a provision of a half a dozen lines, merely to say what we all knew before, what every child knows, that a mere staying in a place, does not give the right of voting. That cannot be. And they will construe it otherwise. We shall mislead them; we shall put an element of doubt in it. I hope, therefore, that it will not pass.

There are other objections; but I will not take much of the time of the Convention in considering them. It is said, that no person shall lose his residence "while navigating the waters of the State or of the United States, or of the high seas." Is he to lose it while absent on land? What peculiarity is there, Mr. Chairman, in the navigation of the high seas, to preserve the right of voting? Salt water is said to preserve many things; but, I never heard before that it was peculiar for preserving the right of voting. [Laughter.] It is said, that if a man is absent on the high seas, his right of voting is preserved; but, if he is absent on land, heaven help him! It cannot be that we are gravely asked to provide that a man who is absent for several years upon the high seas may have his right to vote retained, while the man who is absent from home upon land shall lose it. How will this matter be looked at, hereafter, when this little excitement about

students has passed? People will say, here were lawyers and judges in the Convention, and the Convention said that if a man was absent from home on the high seas, he should not lose his right to vote; plainly implying, that if he was absent on land he must lose it. If he has gone to California and been digging there a long time, he cannot vote when he returns; or, if he travels over land to China.

Mr. BOUTWELL. How can that be done? Mr. DANA. He can travel overland to China without being on the water, at least, longer than ten days at a time, to say nothing of Behrings Straits. He comes back and goes to Williamstown, and wants to vote, and the good selectman says he has been absent, and inquires if he has been navigating the waters of this State. No, he could not do that for four years. Have you been navigating the high seas? No, Sir, only ten days. All the rest of the time I was on land. Then, you see, Sir, you cannot vote; for the Constitution has taken up that subject, and those who made it have said, that if you had been on the high seas, then you might have voted, but as you have unfortunately been on land all this time you cannot vote. Now, it strikes me, that would be the very language, or else we are here enacting an absurdity; one or the other. If it be true, that a man does not lose his right of voting by being away on sea or on land, why confine the privilege to the sea? Expressio unius est exclusio alterius. If it be not true, then we are making an odious distinction in favor of every one who is away upon the ocean. My sympathies are very much with the men upon the ocean; and if I thought it just to say, that the seamen might have the right to vote, notwithstanding their absence, but that the land lubbers should lose the right in consequence of absence, why, I would go for it; but, I fear it is not quite fair and just.

This resolution also says, that no person shall lose the right of voting, "by reason of his presence or absence while employed in the army or navy of the United States."

Is not that going a good ways? Here is a man at the age of twenty-one years, an inhabitant of the State. He enlists into the army of the United States, or into the navy, and he is ordered off, and his absence is only while he is in the army or navy of the United States. How long may he be in the army, and then come back and vote? He may be there twenty years. Suppose he is an officer, and is in the army for life; and yet, according to this resolve, he would be a voter in Boston if he was absent from this city to the day of his death. He need not pay any tax there in order to vote, for we have abolished that. But

[July 5th.

he continues to be a voter. General Scott, on the same principle, would have been a voter in London, or whatever place it was in the old dominion from which he came in 1810, although he has ever since that time been an officer in the army of the United States. So every officer in the army and in the navy of the United States may continue to vote in the place where he last had his residence. And, although his name may not be on the voting list, he may turn up at the end of twenty or thirty years and claim the right to vote; and, if the selectmen do not put his name on the list of voters, or will not do it, he could sue them!

Mr. HALLETT, for Wilbraham. Does the gentleman mean to say that General Scott should not be a voter at the place where he had his original domicile, unless he had acquired another. Mr. DANA. That I do not answer, one way or the other.

Mr. HALLETT. If he had a domicile, then this does not apply to General Scott; nor to any one who has a domicile elsewhere.

Mr. DANA. I do not know why it does not apply. It says, "That for the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the army or navy of the United States."

Now, if his domicile is in another place by reason of his military capacity, then he cannot have acquired the capacity to vote there. Because we have said in Massachusetts that that capacity shall not be so acquired. We have shut it out entirely.

Mr. HALLETT. But the gentleman says, that this provision declares that he shall not lose his residence.

Mr. DANA. That is, his residence for voting. There is another difficulty a-head. We are going to have two or three kinds of domiciles going on at the same time. That is, a gentleman may have one domicile for a residence, another for voting, and another for military service. General Scott-for whose right of voting the gentleman is so anxious-would retain his domicile for voting in Massachusetts, and acquire one for paying taxes elsewhere; and if a man from Massachusetts were in the army or navy, he could pass through Boston after thirty years-having had many domiciles in the interval-and if he found the people engaged in voting, he would have the right to drop in his ballot.

It is perfectly true, as the gentleman, (Mr. Hallett,) says, that he may acquire a domicile elsewhere; but, we mean to confine his domicile for voting to the last place where he happened to

be, and say to him, so long as you remain in the army or navy you shall vote at your last residence here. That is introducing a new class of domiciles. Men in the army and navy, and men navigating the high seas, shall not gain or lose a domicile for the purpose of voting, by change; but domiciles for all other purposes, they may lose or gain. Suppose a student leaves his home in Brookfield, and goes to Williamstown to study. His residence is Brookfield, for taxation. But he is in Williamstown; and suppose his parents then remove to Williamstown-what is the result? Why, his domicile for taxation is then in Williamstown, but not his domicile for voting. That would be the result. If his parents, to whom he intended to return, move to Williamstown, he would be taxed in Williamstown, and would be obliged to perform military duty there, and jury service; and he would have all his rights and obligations there except the right of voting, and that he could not exercise anywhere.

Then suppose his parents remove to Northampton. His domicile for the purpose of voting would revive.

I cannot believe that this Committee ever intended to pass such a resolve as that. I cannot believe that this resolve was thoroughly searched through and examined in all its bearings by the learned and able Committee who reported it. I am inclined to think that they took it a great deal on account of the urgency of the gentleman from Williamstown, who has set his heart so much upon it; and, Sir, it makes my heart bleed for him to be obliged to oppose it, as I feel it my duty to do. Every word costs drops of blood. [Laughter.] Seeing how deeply the gentleman from Williamstown took this matter to heart, I presume the Committee felt anxious to gratify and accommodate that gentleman, and therefore they reported the resolve.

Mr. WILKINSON, of Dedham. If the gentleman from Manchester will allow me, I would like to ask him whether he puts the same construction upon this resolve that he imputes to the gentleman from Williamstown. I do not exactly understand from the tenor of the gentleman's remarks how he would construe it himself.

Mr. DANA. That question is pregnant with another question, and that is, whether I do correctly interpret the gentleman from Williamstown. The gentleman asks me if I put the same construction on the resolve which I impute to the gentleman from Williamstown; but, Sir, that gentleman does not complain of the construction which I put upon the language. Indeed, he admits that he means that. Now here is my difficulty. I do not want the Convention to take this

[July 5th.

resolve upon my interpretation. I do not want them to take it upon the interpretation of the gentleman from Taunton. I do not want them to take it upon the interpretation of the honorable member from Cambridge; neither do I want them to take it upon the interpretation of the gentleman from Williamstown. I am not satisfied with the resolve upon any of the interpretations which have been given to it; and I think it is quite reason enough why it should be rejected, that we find the lawyers here are obliged to ask one another's opinion across the House, to find out what this language does mean, and they do not give uniform answers. If the gentlemen who concocted this measure, and who, therefore, ought to know the most about it, do not agree in their construction, how can we be expected to understand it? If those who have prepared the remedy for the evil do not know what the medicine is which they have concocted, how can we be expected to know what it is, who only have an opportunity to read the label? We are obliged to take the language as we find it. The gentleman from Williamstown wants it to be passed so as to prevent all the students from voting, while the gentleman from Taunton wants it passed because it will produce no such effect as that. The gentleman from North Brookfield agrees with them, that it is a very serious and important measure; but, they question one another across the House to know what it means, and I think that is reason enough why we should not pass it. I wish to have a construction given it by the body who passes it, for a mere private opinion in the matter is of little consequence; I wish to have the Committee say, in plain terms, whether they mean to exclude all students, or

not.

Besides this, there are other objections that lie behind this, with regard to the provisions in relation to the army and navy; but I will not enlarge upon that part of the question. It is said, by the way, that this same clause has been put into the Constitutions of four States. Now, I think the history of that matter will be found to be this. In the Convention which formed the Constitution of the State of Maine, they adopted this same proposition, and without much consideration, it was copied verbatim into the Consitutions of the other three States which have been mentioned. But as I understand it, the gentleman from North Brookfield says that nineteen of the States have substantially the same provisions in their Constitutions; while the gentleman upon my left, (Mr. Stevens, of Clinton,) says, that of these nineteen only four have the word "student" mentioned. I think this puts