Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1866-11-02
QDRlo Statesrrarr.
From the Frankfort Yeoman.l

STATE OF KENTUCKY-CoURT OF APPEALS.
Samuel Burkett. appOllaut@ Appeal from
Elias q. McGstty, appelleo.5 Circuit f'tS@ Court.
The Court being sufficiently advised, de-
livered the following opinion, to-wit:
This is an action of SANDER brought by
the appellant against the appellee, In which
the plaintiff alleged that, being a citizen of
Kentucky, and having resided in Bracken
county for more than two years, and in the
Berlin precinct more than sixty days inn
mediately preceding the last annual cleo
tion, he offered toSvote in his precinct at
that election, but was notpermitted to vote
unless he would take the oath prescribed
bv the expatriation statute enacted on the
11th day of March, 1852, for only an alleged
violation of which his vote had been chal-
le0ged; that thereupon he submitted to the
reuuisition, and, in the oath administered
by one of the judges OF the election, he
swore that he had never done anything pro-
hibited by that statute, and that, after that
oath, the defendant (appellee) speaking In
reference thereto, publicly charged that
therein he had sworn falsely. The Circuit
Court, adjudging the statute unconstitu-
tional, and the oath consequently void for
want of legal authority to require it, sus-
tained demurrer to the petition, and there
upon rendered judgment in bar of the ac-
tion.
Unless the statute was constitutional, the
utterance, as charged, did not amount to
SANDER. because the oath was administered
without lawful authority, and was no more
binding than the void enactment itself,
and, therefore, although the statute has
been since repealed, we are reluctantly
compelled to decide, in this case, on its
constitutional validity. ...
The act does not apply to residence, but
only to citizenship. Had it declared that
citizens joining the Confederate army or
serving its government should be deemed a
temporary nonresident in Kentucky, sus-
pending his right of suffrage at her cleo
tions, a very different question would have
been presented to this court. But, while
a citizen may, with consent of his State,
express or presumed, eXpatriate himself,
no mere act of State legislation can, per Sc,
denationalZe him against his will or with
out his concurrence. Such compulsive eX-
cision of a citizen is heavy punishment,
which can not be constitutionally inflicted
without judicial conviction of some crime
or other act announced by legislation as
forfeiture of citizenship, any more than
bill OF attainder, without judicial cOnvic-
ton, can consttutionally punish citizen.
The most vital principle of the Constltu-
tion is that which divides the three vital
elements of all legislative,
judiciary and executive-among three sep
arate organs of the people, and prohibits
each from exercising functions not allotted
to its sphere; and, consistently with this
conservative theory, the Legislature alone
can define offtnses and prescribe the pun
ishment, and the judiciary alone can adj
Judge the accused guilty. Whether join
ing the Confederate army and leaving the
State to serve in its cause was, per Sc, vol
untary expatriation, would be judicial
question-no legislation could make it so,
nor could court so decide on the simple
act alone.
The expatriation statute denounces for
feiture of citizenship on certain conditions,
and disfranchiseHent is only legal conse-
quence of that forfeiture. TO decitizenize
freeman is tremendous blow; 1t de-
priVes him of his chosen country and home,
and sunders his most endearing relations.
social and civil. Is not this severely punt
tory? And who can be lawfully so punished
without conviction? And how can there
be lawful conviction without trial and
proof? And what other department. than
the judiciary can try and decide on the evil
dence? ... -.
The eighth section of the second article
of the Constitution provides that "every
| free white male citizen of the age of twen
ty-one years, who has resided in the State
two years. or in the county, town or city,
| in which lie offers to vote, one year next
pre- 'eding the election, shall be voter"
And the fourth section of article VIII pro-
vides that "laws shall be made to exclude
from office and from suffrage those who
shall thereafter be convicted of bribery,
perjury, forgery, or other crime or mis-
demeanor." ... -..,.. ..r
Free suffrage is thus guaranteed to every
citizen of Kentucky on the prescribed con-
dtions of age and residence; and this or
ganic right, being fundamental and above
legislative power, no legislative act re-
uutred any other qualification than citizen
ship and the constitutional age and resi-
dence, nor deprive any such citizen of suf-
frage for any other cause than "convic-
tion " of some crime or miA1emeanor de-
| fined by legislative enactment and made
punishable by such disfranchisement.
This is expressly required as indispensa-
BILE to the forfeiture of suffrage as well as
of office, and is, therefore, as necessary in
the one class of cases as In the other. With
out trial and convictien, an office cannot be
constitutionally aditdSed forfeited for
crime. How, then, Can suffrage be held o
be forfeited for crime? The eXpatrlation
act denounces the forfeiture of citizenship
for imputed treason, and the forfeiture
of the right of suffrage only as neces-
sary consequence of such denationaliza-
| ton.
Then, as without conviction citizenship
cannot be forfeited by mere imputation of
crime, suffrage, its constitutional incident,
cannot thereby be fOrfeited-citizenship
n aa.,;nol of fro
latter cannot be lost by the inputation of
crime which shall not have forfeited the
| former. AS long as a man continues to be
de lure, a citizen unconyicted of any crime
| folfeiting his Incidental right of suffrage,
| his age and residence alone can determine
| his constitutional right to vote; and II his
| citizenship cannot be adjudged forfeited
| for imputed crime before legal conviction,
| the same imputatOn cannot, alone, deprive
such citizen of his constitutional right to
vote.
The expatriation statute was enacted for
| the benevolent purpose of preventing citi-
zens of Kentucky from joining or aiding
the rebel army. andO inducing such as had
Joined or aided it to return to their alle-
glance to this State and to the constitu-
tional Union. AS a penalty it denounces a
forfeiture of citizenship, and the only dis
| franchisement which 1t contemplated was
the constitutional and inevitable sequence
of the loss Of citizenship.
we do not doubt that the Legislature had
the constitutional power to prescribe the
conditions on which citizen should, against
his will, forfeit or lose his citizenship. But
how and by whom shall that forfeiture or
| priyation be asceftained and fixed? so the
| Legislature may righttully forfelta citizens
right to vote as a penalty for perjury or