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These bills are generally directed against the
individuals by name, but they may be directed against a whole
class.

The theory upon which our political institutions rest, is, that
all men have certain inalienable rights--that among these are
life, liberty, and the pursuit of happiness; and that, in the
pursuit of happiness, all avocations, all honors, all positions
are alike open to every one, and that, in the protection of these
rights, all are equal before the law. Any deprivation or
suspension of any of these rights, for past conduct, is
punishment, and can be in no otherwise defined.

Punishment not being therefore restricted, as contended by
counsel, to the deprivation of life, liberty, or property, but
also embracing deprivation or suspension of political or civil
rights, and the disabilities prescribed by the provisions of the
Missouri Constitution being in effect punishment, we proceed to
consider whether there is any inhibition in the Constitution of
the United States against their enforcement.--(Cummings _vs._ The
State of Missouri, 4 Wallace, 351-323, and _ex parte_
Garland--same volume.)

We are aware that the Supreme Court of Missouri, in the case of
Blair _vs._ Ridgley, hold a different view, but we submit that
the cases differ in a most material point, to wit: In the Blair
case he was merely required to take the oath taken by all voters;
and, by refusing to do so, he virtually disfranchised himself. In
this case, however, the disfranchisement of the plaintiff is
arbitrary and insurmountable; and we further submit, that the
arguments in this case present it in a different, and, we think,
a broader view than was taken in the Blair case. But to show that
we are not unsupported by authority in this matter, we will now
quote from a New York case, very similar to the Blair case, where
the elector was required, but refused to take the oath, etc.

MILLER, J.: This case involves the constitutional validity
of that portion of the act to provide for a convention to
revise and amend the Constitution of this State, which
excludes from the privilege of voting all who refuse to take
the test oath prescribed by the act in question.

I think that the oath in question was unconstitutional and
invalid, for the reasons which I will proceed to state. The
first subdivision of the tenth section of the first article
of the Constitution of the United States provides, that "no
State shall pass any bill of attainder, _ex post facto_ law,
or laws impairing the obligations of contracts, or grant any
title of nobility." The provision of the act which is to be
considered declares, that no person shall vote at the
election for delegates to said convention who will not, if
duly challenged, take and subscribe an oath that he has not
done certain acts mentioned therein, and inflicts the
penalty of political disfranchisement without any
preliminary examination or trial, for a refusal to take said
oath.

By this enactment the citizen is deprived, upon declining to
conform to its mandate, of a right guaranteed to him by the
Constitution and laws of the land, and one of the most
inestimable and invaluable privileges of a free government.
There can be no doubt, I think, that to deprive a citizen of
the privileges of exercising the elective franchise, for any
conduct of which he has previously been guilty, is to
inflict a punishment for the act done.

It imposes upon him a severe penalty, which interferes with
his privileges as a citizen, affects his respectability and
standing in the community, degrades him in the estimation of
his fellow-men, and reduces him below the level of those who
constitute the great body of the people of which the
Government is composed. It moreover inflicts a penalty
which, by the laws of this State, is a part of the
punishment inflicted for a felony, and which follows
conviction for such a crime. It is one of the peculiar
characteristics of our free institutions, that every citizen
is permitted to enjoy certain rights and privileges, which
place him upon an equality with his neighbors. Any law which
takes away or abridges these rights, or suspends their
exercise, is not only an infringement upon their enjoyment,
but an actual punishment. That such is the practical effect
of the test oath required by the act in question, can admit
of no doubt, in my judgment. It arbitrarily and summarily,
and without any of the forms of law, punishes for an offense
created by the law itself. In the formation of our National
Constitution, its framers designed to prevent and guard
against the exercise of the power of the Legislature, by
usurping judicial functions, and for the punishment of
alleged offenses in advance of trial, for offenses unknown
to the law, and by bill of attainder and _ex post facto
enactments_, etc.--(Green _vs._ Shumway, 36 Howard's
Practice Rep., pp. 7, 8.)

On the same subject, we will next quote from a decision by the
Supreme Court of Nevada:

LEWIS, C. J.--The form of the law by which an individual is
deprived of a constitutional right is immaterial. The test
of its constitutionality is, whether it operates to deprive
any person of a right guaranteed or given to him by the
Constitution. If it does, it is a nullity, whatever may be
its form. Surely a law which deprives a person of a right,
by requiring him to take an oath which he can not take, is
no less objectionable than one depriving him of such right
in direct terms.

To make the enjoyment of a right depend upon an impossible
condition, or upon the doing of that which can not legally
be done, is equivalent to an absolute denial of the right
under any condition. The effect, and not the language of the
law, in such case, must determine its constitutionality. It
would not be doubted for a moment that a law expressly
denying the elective franchise to any person upon whom the
Constitution confers it would be unconstitutional. Why,
then, is a law less objectionable which, although not
expressly and directly, yet no less certainly denies the
right, etc.--(Davies _vs._ McKeeby, 5 Nevada Rep. 7,371.)

We quote next from a Tennessee case:

The elective franchise is a right which the law protects and
enforces as jealously as it does property in chattels or
lands. It matters not by what name it is designated--the
right to vote, the elective franchise, or the privilege of
the elective franchise--the person who, under the
Constitution and laws of the State is entitled to it, has a
property in it, which the law maintains and vindicates as
vigorously as it does any right of any kind which men may
have and enjoy.

The rules of law which guard against deprivation or injury, the
rights of persons in corporeal properties, are alike and equally
applicable to the elective franchise, and alike and equally guard
persons invested with it against deprivation of or injury to it.
Persons invested with it can not be deprived of it otherwise than
by "due process of law." See

The State _vs._ Staten, 6 Caldwell's Rep., p. 243. See also
Rison _vs._ Farr, 25 Ark. Rep., p. 173; Winehamer _vs._
People, 13 N. Y., 378; State _vs._ Symonds, 57 Maine, 150,
511; Huber _vs._ Riley, 53 Penn., 112; Cooley's
Constitutional Limitations.

We conclude this list of references with Mr. Webster's celebrated
definition in the Dartmouth College case (4 Wheaton, 581):

By the law of the land is most clearly intended the general
law; a law which hears before it condemns, which proceeds
upon inquiry, and renders judgment only after trial. The
meaning is, that every citizen shall hold his life, liberty,
property, and immunities, under the protection of the
general rules which govern society. Everything which may
pass under the form of an enactment is not, therefore, to be
considered the law of the land. If this were so, acts of
attainder, bills of pains and penalties, acts of
confiscation, acts reversing judgments, and acts directly
transferring one man's estate to another, legislative
judgments, decrees and forfeiture, in all possible forms,
would be the law of the land.

Such a strange construction would render constitutional
provisions of the highest importance completely inoperative
and void. It would tend directly to establish the union of
all powers in the Legislature. There would be no general
permanent law for courts to administer, or for men to live
under. The administration of justice would be an empty
form--an idle ceremony. Judges would sit to execute
legislative judgments and decrees; not to declare the law,
or to administer the justice of the country.

That the elective franchise is a privilege of citizenship, we
have the authority of Judge Washington, for he says:

What are the privileges and immunities of citizens in the
several States? We feel no hesitation in confining these
expressions to those privileges and immunities which are in
their nature fundamental; which belong of right to the
citizens of all free governments; and which have, at all
times, been enjoyed by the citizens of the several States
which compose this Union, from the time of their becoming
free, independent, and sovereign.



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