Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1868-10-28
THE NEW YORK DECISION.
The Rights Of Electors.

The New York supreme Court con-
sists Of five Republicans and three Demo.
Gratis. The following important decision
to which we adverted yesterday, was the
opinion of five of the Judges-three Re-
publicans dissenting
Miller, J.-This case involves the con-
stitutional validity of that portion of the
act to provide for a convention to revise
and amend the Constitution ofthe State,
which excludes from the privilege Of
voting all who refuse to take the test
oath prescribed by the act in question Is.
L. of 1867, chap. 1914, sec. 2, p. 2S7.)
l think that the oath in question was
unconstitutional and invalid. 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, er post
.factO law, or law impairing the obligs-
tons of contracts, or grant any title o
nobility" This act declares that no per,
son 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 men
toned therein, and inhicts the penalty Of
political Acknowledgement, without any
preliminary examination or trial, for q re-
fusal to take said oath. Thus the cii
zen is deprived, upon declining Of right
guaranteed by the Constitution sRdi the
laws, and one Of the most inestimable
privileges of free government. There
can be no doubt, think, that to deprive
citizen of the privilege of exercising
the elective franchise for any conduct of
which he has previously been guilty, is
to infict punishment for the act done.
1t imposes upon him severe penalty,
one which by the laws of this State is a
part Of the punishment inflicted after
conviction for felony. 1t arbitrarily and
summarily, and without any Of the forms
oflaw, Furnishes for an Offense created by
the law itself.
When the act in question was passed
by the Legislature, there was no law in
this State which condemned or charac-
terized the conduct which is punished in
this act, by depriving the citizen of the
right Of suffrage. This law created
new crime, and makes an offerss which
did not previously exist. 1t Furnishes for
an act which was not crime when com.
mitted. Besides the statute in question,
in violation of the common law, pro-
nounces judgment Of condemnation with
out evidence, without any opportunity to
defend against the charge, and without a
trial. 1t makes the party the accuser of
himself and his refusal to acquit himself
for any cause his own condemnation. 1t
Furnishes for an offense before an accuse
ton is made and trial had judicially,
according to the Constitution and the laws
of the land. 1t compels him, in direct
violation of the fifth amendment Of the
Constitution of the United States, "to be
a witness against himself" His refusal
to testify that he is innocent operates to
produce his conviction, and seals his
guilt. The object of the fifth amend
ment was to prevent the party from be-
ing called upon as a witness of his own
guilt. To compel him to testify would
violate this provision; and indirectly to
make a refusal to testify cause for pun.
ishment, effects the very same purpose.
1t is only an evasion of the provision
cited.
Again, the act is essentially in the par
ticulars indicated, both bill of attainder.
or Of pains and penalties, and an &c post
fdctO law. In Cummings against the
State of Missouri "a Wal, 277,) bill of
attainder is defined to be q legislative act
which inficts punishment without ju-
dicial trial. Field, Judge, in the opinion
of the court, remarks In these cases,
the legislative body, in addition to its
legitimate functions, exercises the powers
and office of Judge it assumes, in the
language of the textbooks, judicial ma
gistracy it pronOunces upon the guilt of
the party without any of the forms or
safe guards or trial it determines the
sufficiency of the proofs produced,
whether conformable to the rules Of evil
dence or otherwise; and it fixes the
degree OF punishment in accordance with
its own notions Of the enormity Of the
offense." The learned Judge cites cases
from British history, where bills Of this
character had been passed, and the court
held that the second article Of the Con-
stitution of the State of Missouri, which
required test oath from priests and
cIergymen, in order that they might con-
tinue in the exercise of their professions,
and be allowed to preach and teach con-
stituted bill Of attainder, within the
meaning Of the provision of the Federal
Constitution prohibiting the States from
passing bills of that character.
The court also held that the clauses of
the same article, in depriVing priests and
clergymen of the right to preach and
teach, impose penalty for acts which
were innocent when, they were commit
ted, and increase the penalty for certain
public offsnses, and in both particulars
violate the prohibition of an &c post
factO law. That they further violated
that provision in altering the rules of evil
dence with respect to the proof Of the
acts specified; thus, in assuming guilt
instead of the innocence of the parties, in
requiring them to establish their limo
cence instead of requiring the govern
ment to prove their guilt, and declaring
that their innocence can be shown only
in one way, by an expurgatory oath.
In er parte Garland "a Wal. 1888, a
similar question was presented, and it was
held that an act of Congress which ex-
cludes from pIacticing in the Federal
courts any attorney or counsellog who
refuses to take test oath, partakes of
the nature of bill of pains and penal
ties, and is subject to the constitutional
inhibition against the passage Of bills OF
attainder, as well as within the inhibition
of the Constitution against the passage OF
an er post fact0 law.
The cases cited cover the question dis
cussed, and are decisive and con-
trolling. But besides, all oaths
of an expurgatory character, especially
when applied as a means Of punish
ment for past acts, not at the
time known to the law as crimi"
nal, have been regarded in all countries
in modern times, as Odious and inquisi:
torial, and passed as they usually are in
times of high excitement, upon the return
of cool Judgment and calm reason have
been condemned and repealed by legisla
tive enactments. Such was the case in
our State after the termination of the
revolutionary struggle. Some laws Of
such character had been passed during
that period; and even after its close,
when peace had returned, rigid enact
l. ,-H;oh ovoIu5oI from