SELECTIONS FROM THE MADISON WISCONSIN ARGUS THE "ALIEN LAW” [October 14, 1845] Whigs seem to regard this law as an extension of the right of suffrage.16 In this respect they give us too much credit. It is rather an act to restrict the right of suffrage. The law as it now stands makes a residence of six months in the territory a necessary qualification for a voter for delegate to form a state constitution. Without some such law every male resident of mature age, wherever born, or however short a time he may have been in the territory, would be entitled to vote. The reason is that, in the formation of a new government by the people, which is to be for certain purposes and to a certain extent absolutely sovereign and independent, society is, to precisely the same extent, thrown back into its original elements and left entirely, absolutely, and necessarily without law; for, so far as they are bound by law in the formation of their government, so far their government is already formed and beyond their coLtrol. Now, to what extent and for what purposes is the proposed state to be sovereign and independent? Without enumerating further, we must put down the right to define the qualifications of her voters as one of the absolute powers of state sovereignty-a power which no other state nor all the others together in their federal capacity can interfere with. The Whigs, it is true, have labored to identify the right of suffrage with citizenship, and, in respect to foreigners, with the naturalization laws; but those who have at 16 For an account of this law and of the whole subject of alien suffrage in this period see Louise P. Kellogg, "The Alien Suffrage Provision in the Constitution of 1846," in Wisconsin Magazine of History for June, 1918. tempted it, have only exposed their ignorance of the fundamental principles of our government. The power to enact naturalization laws is, as everybody knows, conferred upon Congress by the constitution. The power to define the qualifications of voters, as everybody ought to know, is reserved to states respectively. In forming a state government we shall not be acting in our territorial capacity, for the territorial government does not possess the power of self-annihilation which the formation of a state government contemplates. Consequently, the laws of Congress creating this government and defining its powers can have no reference to such a step. Congress cannot define the qualification of voters for the formation of a state government for the constitution confers upon Congress no power over the people of the territory except in their territorial condition-to govern them as territories. Congress can hold us in our present condition or release us from it as they please; but they must govern us as a territory or not govern us at all. The state cannot define the qualifications of the voters for this purpose for it is not yet formed, and even the territorial government, the moment it makes the attempt, transcends its legitimate powers and its acts are merely advisory. Where, then, are we to look for authority upon the subject? Evidently there is no authority but in the people; because, in respect to a state, this is an original power resting with the people. Suppose Congress should attempt to define the qualifications of voters upon this question-by what means could their regulations be enforced? Suppose they make citizenship a necessary qualification, and the people, in their primary capacity, determine to let every man vote, and delegates thus chosen form a constitution and the people adopt it-what possible effect could the votes of one or five thousand foreigners have upon the validity of the proceedings, or of the constitution formed? Clearly none at all, for the constitution could be of no force at any rate until approved by Congress and the state admitted into the Union. Should Congress choose to reject our constitution because we had not been governed by their dicta in its formation and adoption, they would have the power to do so; and so they would for any other reason or for no reason at all. But if the constitution were in all respects satisfactory, both to Congress and to the people of the proposed state, there could be no ground of complaint from any quarter and the constitution would be approved of course. If there is no power above the people which can reach the question it becomes one of natural right and all distinctions of nationality must be abandoned, for the reason that, in respect to the new government, all the inhabitants are foreigners alike and must alike become citizens and subjects of the new government, by virtue of its being formed over them, which places them in all respects in the same situation as if they had been born under it. There is no principle of political or international law more clearly settled or more obvious in itself than that the conquered owe allegiance to the conqueror, and the peaceable succession of a government to the control of a country can be no less effectual to this end. As the territory, therefore, assumes the character and attributes of a new and independent sovereignty, the subjects of foreign states residing in the country are, by the law of nations, absolved from their allegiance to their former sovereigns and become citizens and subjects of the new government, whether they are willing or not. They are allowed no choice in the matter. If none are yet citizens of the new government, and all must become such in spite of themselves, then, in respect to citizenship, all stand upon the same common level and are equally entitled to participate in its formation. By what rule, then, can the people in their primary capacity discriminate between those who may participate in the transaction and those who may not? If we say to the Englishman, "You shall not exercise political rights because you were not born in America," he might with equal propriety deny us those |