The Idaho world. [volume] (Idaho City, Idaho Territory) 1864-1918, 1868-11-14
4 TEST OATH DECISION.

We Gin the following from the st. LOUIS &c
publican Of October 28th:
We are indebted to Charles G. Whittiese|y,
Esa fnr nm abstract of the Judgment latoiy
reniered by the New York Court Ut APpealss
unonl the subject of test-oaths in the case y
Green VS.. Shumway ct al: ,c5
| Green sued Subway and the otler aeleuu-
ants for refusing to receive his 7nte az az eiec-
t;nn hald to elect members of a Convention W
amend the Constitution OF the STATE. Inc
nlnintif in his petition set out the facts which
showed his right to vote, and the reiusai Vi up
ballot by the defendants. The defendants an-
swered, stating that they refused 10 receive l.s'
ballot of the plaintiff because he refused 70
take and subscribe to the test-Oath prescrlnsea
bv the Act of the Legislature providing FOR Tue
election of the Convention. This oath was
ike that prescribed by the Act of Congress OF
July Q. 1862, adding that the afhant had nor D.
deserted the military or naval service, nor iei1
the State to avoid the draft. The answer de-
MED all Intentional wrong, and claimed taat
they had merely performed duty Ill refusing
to permit the plaintiff to vote
4 demurrer to the answer was overruied a.
General Term, and judgment for the plaintin
entered, and defendants appealed to the court
of last resort.
The Court decided that the oath was uncon-
stitutional. that it was In conflict Win Sec. ~
Art. of the Constitution OF the United STATES
forbidding any State to pass bills Oh attainder
or &c post factO laws, DC. mat the provisions
of the oath declared that no person should vote,
who will not, if duly challenged, take ana SUD-
scribe an oath that he has not done certain acts
mentioned therein, and inficts the penalty OF
political disfranchisement without any prelim
mary examination or trial for a refusal! to take
said OATH "By this enactment the citizen IL
deprived, upon declining to conform to its man.
date. of right guaranteed to him by the Con.
stitution and laws of the land, and one OF the
most inestimable privileges of free govern.
ment. 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 intlict a
punishment for the act done. 1t imposes upon
him severe penalty, which interferes with his
privileges as u citizen, affects his responsibility
and standing in the community. degrades ham
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 Gov
ernment is composed. 1t moreover inficts O
penalty which by the laws of this State is Q
part of the punishment inflicted for felony
and which follows conviction for such Il crime
1t is one of the peculiar characteristics OF our
free Institutions that every citizen is permit
ted to enjoy certain rights aud privileges, which
places him upon an equality with his neighbors
any law which takes away or abridges thes.
rights, or suspends their exercise, is not onl,
an infringement upon their enjoyment, but al
actual punishment. That such is the practica
effect of the test-oath required by the act il
question can admit of no doubt in my judgment
1t arbitrarily and summarily, and without an!
of the forms of law Furnishes for an oHenc,
created by the law itself"
The Court then further considers the Act o
the Legislature as usurping judicial functions
Furnishing offences before trial, and as in effec
bills of attaindcr, and comments upon and ap
proves the decisions iii the Cummings and Gar
land eases.
The Court also held that the Act was in con
hct with the Constitution of the State for al
the rights and duties Of electors who were Ell
titled to vote were prescribed and fixed by til,
Constitution ITSELF the Legislature could no
restrict the right of suffrage thus established
And also that it DISTINGUISHED the citizen in OPP
position to the law of the land aud without th,
judgment of his peers.