of a constitutional provision that all elections shall be "free and open"; 10 that the limitation of a voter to two and one-half minutes for the preparation of his ballot is not unreasonable nor invalid;" that a provision permitting the attendance of a sworn special constable to assist blind voters or those who were otherwise "physically or educationally" unable to mark their ballots does not deprive such voters of the equal protection of the laws, nor establish inequality of civil or political rights, nor establish new educational and physical qualifications for voters; 12 that the requirement that no names be printed on the ballot, except those of the candidates of political parties, is not an unreasonable restriction of the rights of an independent voter, provided he be allowed to write on the ballot the name of any other candidate ; 13 that a prohibition against electioneering within a reasonable distance of the polls is not an infringement of any rights protected by either a State or the Federal Constitution; 14 that a statute may forbid the printing of a candidate's name in the column of more than one party, although he has been nominated by two or more; 15 but that one is void which forbids an elector to vote for a person whose name is not printed in the official ballot, unless expressly authorized by the constitution.1

Every ballot law, however, must contain due protection for the rights of all voters qualified by the State constitution. Consequently, in the absence of express authority, a law would be unconstitutional, which prevented from the expression of his choice a voter who, through a physical defect or lack of education, was unable intelligently to select or mark a ballot.17 A recent case holds

10 State v. McMillan, Missouri Supreme Court, 18 S. W. Rep., 784.

11 Pearson v. Board of Supervisors of Brunswick County (Va.) Court of Appeals, 21 S. E. Rep., 483.

12 Ibid.

13 State v. Black, 54 N. J. Law, 446; s. c. 24 Atl. Rep., 489; De Walt v. Bartley (Pa. s. c.), 24 Atl. Rep., 185. See also Miner v. Olin, 159 Mass., 487; s. c. 34 N. E. Rep., 721.

14 State v. Black, 54 N. J. Law, 446; s. c. 24 Atl. Rep., 489.

15 Todd v. Board of Election Commissioners of Kalamazoo (Michigan Supreme Court), 62 N. W. Rep., 564: a case of doubtful authority.

16 State v. Dillon, 32 Florida, 545; s. c. 14 Southern Rep., 383.

17 This point has been the subject of much discussion in recent political contests in New York over the proposed change in the system of election by ballot. The following opinion, signed by some of the most eminent members at the New York

that a law which allowed a vote for all the nominations of a political party by stamping a cross opposite the name of such party at the head of the ballot was unconstitutional, as a discrimination against classes of voters who did not adhere to any party and had made nominations for only a part of the offices to be filled at the election.18 The soundness of this decision may well be doubted.

§ 59. General Observations upon the Right of Suffrage.

A survey of the laws and constitutions established in the United States during the nineteenth century, shows a steady extension of the right of suffrage, with no reaction except recently in the South to reduce the negro vote by inconvenient regulations for registration as to previous residence, educational and tax-paying qualifications. Universal manhood suffrage is now the rule in nearly all the States of the Union, and there is at least a temporary tendency toward the further extension of the right to women. Prophecies of resultant evil have been frequent, and opposition to

Bar, was furnished to Governor Flower and transmitted by him to the legislature in April, 1894:

"First- Any duly qualified elector has a right to vote for any competent person to fill an office for which a person is to be elected at the election at which he desires to vote, whether or not such person for whom he desires to vote has been so nominated that his name is printed upon the official ballot. Any ballot act which does not afford all voters, whether illiterate or not, an opportunity and reasonable facilities for voting for such a person is unconstitutional.

Second - If a secret ballot act prescribing an official ballot does not permit the voter to write upon the ballot the name of the person for whom he desires to vote, whose name is not borne upon the official ballot, or to vote for such person by a paster placed upon such ballot, or by some other method, the act is unconstitutional.

"Third-Such a ballot act must enable voters who, by reason of ignorance or physical disability, cannot write, to have the assistance of a competent person to

W. B. HORNBLOWER, W. H. PECKHAM, HUGH L. COLE, ELIHU ROOT, FRANCIS L.STETSON, JOSEPH H.CHOATE." In Cook v. State, 90 Tenn., 407; S. c. 16 S. W. Rep., 471, it was held that a law was constitutional which compelled each voter without assistance to mark the names of the candidates whom he selected. But see State v. Dillon, 32 Florida, 545; s. c. 14 Southern Rep., 383; supra.

18 Easton v. Brown, 96 Cal., 371, 373.

§ 59. 1 See the Constitution of Mississippi.

each extension has been made from those of the community with the largest wealth and the deepest learning.2 But they have not been justified. History proves that, in all ages, wherever power has been vested in a class, no matter how intelligent, they have exercised it by legislation oppressive to those who were disfranchised, and that even if selfishness can be eliminated, ignorance of the wants of the disfranchised produces a similar result. For proof of this we need not go back to the republics of Greece and Rome, to the Italian cities of the middle ages, or even to England and France during the eighteenth century. It is evident in the unfair treatment of the Hindoos by Great Britain at the present time, in the legislation against the colored freedmen in the South before the adoption of the Fourteenth and Fifteenth Amendments, in the liquor and Sunday laws, with which the inhabitants of the country districts still oppress the poorer classes in New York city.3 All of these were and are supported by a large majority of those with the greatest amount of property and the most scholastic education, and in the latter case, undoubtedly, in the benevolent belief that the poor will be benefited by the denial of privileges which they themselves can exercise. The possession of wealth does not destroy selfishness, nor the study of books give a knowledge of the wants of human nature. The instinct of the people

2 Webster and Kent both opposed the removal of property qualifications. See the debate in the New York Constitutional Convention of 1821, and that of Massachusetts in 1820.

3 In August, 1895, a man was arrested in New York City for selling ice on Sunday to the inmates of tenement houses. See the New York World for that month.

4It is a fact, the full significance of which has not yet been perceived by the masses, that the condition of society which renders the right of entry to the institutions for higher education the almost exclusive privilege of wealth, tends, from the close connection of these institutions with the intellectual life of society, to render them (however much they may,

is usually wiser than the theory evolved in his library by a philosopher. In a state of civilization, where some of the richest do not own a rood of land, the limitation of the suffrage to freeholders is manifestly absurd, as well as impracticable. No logical line of demarcation can be drawn between the owners of personal property, which should divide a governing from a subject class, unless all tax-payers are included in the first. The limitation of the right to vote to tax-payers is still tried in some States, but has become an expensive farce, since it only results in an increase of the cost of the campaign, without raising the intelligence of the voters. For the poll-taxes of the poor are paid by the political parties who expect to receive their votes. More plausible are the arguments in favor of an educational qualification; but this requires a degree of impartiality in the examiners such as is rarely found among politicians or public servants. The section of the Constitution shown to the voter is first taught him by heart, as was the neck-verse to the malefactors who wished to plead benefit of the clergy. Moreover, the uneducated need protection from oppression even more than those who have been to school.

But the opponents of universal suffrage contend that, although there may be danger of class tyranny in an oligarchy, there is far more in a democracy; and that tyranny by the lowest class, which is without property and education, is the most oppressive of all. The history of the United States does not support the claim. A careful student of the different periods since the declaration of

nineteenth century the educated classes, in almost all the great political changes that have been effected, have taken the side of the party afterward admitted to have been in the wrong they have almost invariably opposed at the time the measures they have subsequently come to defend and justify. This is to be noticed alike of measures which have extended education, which have emancipated trade, which have extended the franchise. The educated classes have even, it must be confessed, opposed measures which have tended to

secure religious freedom and to abolish slavery. The motive force behind the long list of progressive measures carried during this period has in scarcely any appreciable measure come from the educated classes; it has come almost exclusively from the middle and lower classes, who have in turn acted not under the stimulus of intellectual motives, but under the influence of their altruistic feelings." (Kidd, Social Evolution, American ed., pp. 252-353.)

5 See Gray's notes to Hudibras.

independence must be convinced that the character of public men is quite as high now as it was before the suffrage was enlarged. And when we compare the corruption in France, under Napoleon III, with the condition of affairs under the present French republic, there can be no doubt as to the superiority of the latter. The approval of the two Napoleons by plebiscites was, in so far as it was voluntary, due to a preference for the will of one strong man, who could preserve order and save property from pillage, over an oligarchy subject only to the threats of the mob at Paris, who not only denied local self-government to the provinces, but were powerless to enforce their own orders, and threatened legislation of the most communistic character.

In the Spanish-American so-called republics, where suffrage is nominally universal, by means of suspensions of the constitution and the declaration of states of siege, the maintenance of soldiers at the polls, and manipulation of the count, the cast of the ballot is an idle ceremony, and the real government a military despotism. Neither France nor America, south of the United States, has local self-government, or courts which are empowered to uphold the written constitutions.

At the present time there is a growing feeling that much mischief has been caused by the liberal extension of the suffrage to foreigners; and the recent New York Constitution shows a reaction in the other direction. But if their immigration is to be allowed, not only their own interests but those of the community seem to demand that they have a voice in making the laws and in selecting those who are to enforce them, if they are to obey those laws and officers, and not to suffer injustice and persecution. No student of life to-day in our great cities, as well as in those of Europe, can fail to be impressed by the constant discrimination on grounds of race and religion by public officials, some of them judicial, whose duties bring them into contact with the poor, and by the need of protection through a share in the government to immigrants of despised races, if they are to be permitted to pursue their trades unmolested.7

6 See Lieber, Civil Liberty, Appendix I.

7 The testimony before the Lexow

Committee, appointed by the New York Senate in 1894, furnishes abundant proof of this. In the case of