Year: 1868

of the Constitution into mere nom


sense. The people would be- made


to say to the two Houses, You


shall be vested with the legislative


power of the State but no one shall he


disfranchised, or deprived OF any Of the


rights or privileges of citizen, unless


you pass statute for that purpose in


other words, You shall not do the


wrong, unless you choose to do it, 4.


The meaning of the section then seems


to be, that no member of the State shall


be disfranchised, or deprived of any of


his rights or privileges, unless the matter


shall be adjudged against him upon trial


had according to the course Of the com


mon IaU. It must be GsceTtGined JUDI


CIALLY that he has forfeited has privileges,


or that some one else has a superior title


to the property he possesses, before either


of them can be taken from him. 1T
CANNOT BE DONE BY MERE LEGISLATION.


The words due process of law cannot


mean less than prosecution or suit, in


stituted and conducted according to the


prescribed forms and solemnities for as


certaining gull, or determining the title


to property"


This decision was approved and the


same principles asserted, under the Con-


stitution Of 1916, in the same Court, in


White us. White, Barbour 474.


Undoubtedly, as was held in Barker q.


The People, 3 Coteen 886 and 20 Johnson


457 and in WynehGnaer u. The


People, 8 Herman, 37S, AIS, the


Legislature may provide by law


that incapscity to hold Office or vote


shall be part of the punishment of s


particular offence. But it is part Of the


punishment; and no man can be in any


way punished for crime, except upon


one trial and conviction. There Is no
other lawful mode OF sscertaining that


he has been guilty; and until he has
been so convicted, he is presumed to be
1 innocent.


The Supreme Court Of Tennessee, in
/ Ridley as. .SheT6rOOk, unconsciously
evaded the real questiod in the cause,
and decided one which did not settle
the case before them. They said we
prefer to quote their own words):
The elective franchise is not an In
aIiepa5le right or privilege, but politi-
cal right conferred, limited or withheld,
at the pleasure Of the people acting in
their sovereign capacity. Each State |
may define it in its own constitution or
empower its Legislature 70 do SO.
The right once granted, was not taken |
away by the exercise OF sovereignty |
power or forfeited for crime under the
laws Of the State, and II taken away |
by the sovereign power OF the state as
nv an alteration in its Constitution, no |
vested right is violated or bill OF attain
passed, or act of pains and penalties
in the sense of the Constitution of the |
limited States. 1t follows if the cOnven-
ton of 1865 could, under the ratification |
of the people, declare the qualification Of
voters and limit the elective franchise, /
it could delegate the power to the Legis-
lature. Il might have left the elective |
franchise omen to the action Of all future /
legislation, but it chose to limit it to the /
General Assembly which should first |
assemble under the amended Constitu-
ton.


p The question was not whether the
Legislature could make participation in
what it deemed and declared treason |
and rebellion, a disqualification to vote
but whether it could enact that this /
fact of guilt might be made to appear,
and to work the disqualification, with
out trial and conviction in due course
of law. The Court said, afterwards,
that person must bring himself within
the terms ST the law, to be entitled to be
registered {; but that was not to decide
the question on which the case turned.
The Court should have inquired whether
the Legislature could constitutionally, or
according to the principles of natural
Justice and right, torture the conscience,
as the InquisitiOn tortured the body, by
requiring party to swear that he had
not committed particular offence, as
condition precedent to reconstruction.
To refuse to swear is to confess the guilt;
and thus the party loses his franchise, for
the reason that he has committed an
offence, when he has not been tried and
convicted and would equally lose his
franchise if he had been acquitted, un-
less he would swear that he was not
guilty; and thus his sequittal would no
longer avail him anything.


The decision is TOO palpably and glar-
ingly wrong to be entitled to the least
respect and it has to most unfertu-
nate extent destroyed the general conf
dence In the Court.


OF course the same principles apply,
and even more strongly, to the exercise
by the Governor Of the pretended
right to cancel by proclamation and at
one fell swoop,' all the certificates Of
registration issued to the people of a
county. The President OF the United
States might as well attempt to cancel
patents for land, or certificates of natu-
by proclamation. Once grant
ed, the certificate of registration can
only be cancelled by judicial action and
for lawful cause.


These principles are too elementary to
need TO be discussed. Ten years ago,
nobody would have dreamed that they
could ever be brought into controversy.
But we are all at sea now, and the very
Of the law are disturbed and
unsettled. Propositions are now gravely
by judges which would have
been laughed at by the whole legal pro-
fessiOn Of the country at any time prior
to 1851 and those are denied which all
men once deemed as undeniable as the
axioms Of geometry. At this rate, we
shall soon have outlived the law and the
Courts will fall into complete contempt.


So an Office is an estate, that may be
sued for, and that cannot be takeuawa
by Proclamation, but only by judicial
procedure. If the Governor can remove
a Registrar at his pleasure, he can equally
remove the Judges Of the Supreme
Court and if these affirm his power to
do the former, they would win little
sympathy IL he were to exercise the lat