Green v. Shumway

This ease 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 (Sess. Laws of 1867, chap. 194, § 2, p. 287).

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 “ Bo State shall pass any bill of attainder, ex post facto law, or law impairing the obligation 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

By this enactment the citizen is deprived, upon declining to conform to its mandate, of a right guaranteed to him by the Constitution and the 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 privilege 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 wdiich, 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 places 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 offence 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 j udicial functions, and for the punishment of alleged offenders, in advance of trial, for offences unknown to the law, and by bill of attainder, and ex post facto enactments.

Laws of this character were considered as among the most mischievous and vicious class of judicial legislation, and in England were made the instrument for gross abuse, and a tremendous

When the act in question was passed by the Legislature, there was no law in this State which condemned or characterized the conduct which is punished in this act, by depriving the citizen of the right of suffrage. This law creates a new crime, and makes an offence which did not previously exist. It punishes for an act which was not a crime when committed. But, even if the alleged offences incorporated in the oath prescribed were known to the law, the statute in question, in violation of the rules of the common law, pronounces judgment of. condemnation without evidence, without any opportunity to defend against the charge, and without a trial. It makes the party the accuser of himself, and his refusal- to acquit himself for any cause, his own condemnation. It punishes for an offence before an accusation is made and a trial had judicially, according to the Constitution and the laws of the land. It 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 amendment last cited was to prevent the party from being called upon as a witness of his own guilt, and to insure to him a full and fair trial by due process of law. To compel him to testify would violate this provision; and indirectly, to make a refusal to testify a cause for punishment effects the very same purpose. It is only an evasion of the provision cited, to condemn a person for a refusal to swear to innocence.

That the Federal Constitution is violated by the provision of the act to which I have referred, I entertain no doubt. It is essentially, in the particulars indicated, both a bill of attainder, or of pains and penalties, and an ex post facto law. We are not without

In Cummings v. The State of Missouri (4 Wal. 277), a bill of attainder is defined to be a legislative act which inflicts punishment without a judicial trial. Field, J., who delivered the opinion of the Court, remarks: “ If the punishment' be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these-cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judges; it assumes, in the language of the text-books, judicial magistracy; it pronounces upon the guilt of the party without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offence.” 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 Constitution of the State of Missouri, which required a test-oath from priests and clergymen in order that they might continue in the exercise of their professions, and be allowed to preach and teach, constituted a 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 a penalty for some acts which were innocent at the time they were committed, and increase the penalty prescribed for such of the acts specified as, at the time, constituted public offences, and in both particulars violate the provisions of the Federal Constitution prohibiting the passage by the States of an ex post facto law. That they further violate that provision in altering the rules of evidence with respect to the proof of the acts specified : thus, in assuming guilt instead of the innocence of the parties;

In Ex parte Garland (4 Wal. 333) a similar case was presented, and it was held that an act of Congress which excludes from practising in the- Federal Courts any attorney or counsellor who refuses to take a test-oath precisely like the oath required by the provision of the act in question,, with the exception of the last clause, relating to desertion, partakes of the nature of a bill of pains and penalties, and is subject to the constitutional inhibition-against the passage of bills of attainder, under which general designation bills' of pains and penalties are- included; and that, in the exclusion which the act adjudges, it- imposes a punishment for some of the' acts specified ddiicli were not punishable at the time they were committed, and for other of the acts it adds a new punishment to that before prescribed, and it is thus within the inhibition of the Constitution against the passage of an ex post facto law.

Independent of any views which may be entertained, the cases cited' cover the-" question discussed, and are decisive and controlling. Any further discussion would therefore be unnecessary; but it is not inappropriate to add, that all oaths of an expurgatory

I am also of the opinion that the statute in question violates the Constitution of the State of LTew York.

The first section of the second article of the Constitution prescribes the qualifications of electors who shall be entitled to vote “for all officers that now, or hereafter, may be elected by the people.”

The second section of the thirteenth article provides for the submission of the question whether a convention shall be called “to the electors qualified to vote for members of the Legislature, and in case a majority of the electors so qualified, voting at such election, shall decide in favor of such convention for such a pur

This clause does not confer upon the Legislature any power to create disabilities not existing at the time under the Constitution, or to restrict the right of suffrage which the Constitution has established. It would be extraordinary if the Legislature had the right to determine who were entitled to the privilege of voting, and thus, in the exercise of an unlimited discretion, be able to disfranchise any class of citizens, when the right is already clearly established. Such a power would be liable to the grossest abuse, dangerous in the extreme, and obviously was never intended to be conferred. It is evident, I think, that the above section specifying the qualification of electors to pass upon «the question whether or not there shall be a convention, plainly imports that the same electors, and no others, are qualified to vote for delegates, •and any disfranchisement of any portion of said electors is a violation of this section, and therefore void.

The statute also violates section one of article one of the Constitution of this State, which declares that “no member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” The “law of the land ” does not mean a statute passed for the purpose of working the wrong, but the law which existed at the time when the alleged offence was perpetrated. The provision was intended to restrict the powers of the Legislature, and to prevent any act which would deprive a party of his rights or disfranchise him until it was ascertained judicially that they had been forfeited (Wynehamer v. The People, 13 N. T. 393, 394, and 416, and cases cited). The act in question pronounces a judgment and disfranchises the elector without judge or jury, or any of the forms required by the ordinary course of legal proceedings.

It also violates section six of article one, which declares that no person shall be held to answer for a crime except on presentment of a grand jury; and the second section of the same article, which secures the right of trial by jury in all cases in which it

It is manifest that the case was rightly decided by the General Term ; and the judgment reversing the judgment of the Special Term, overruling the demurrer and dismissing the Plaintiff’s complaint, must be affirmed, with costs.

Grover, Clerke, and Dwight, JJ., were for affirming, on the ground that the act in question violated the true intent and meaning of the Constitution of the State of Hew York.

Bacon, J., was for affirming, on the ground that the decisions of the Supreme Court of the United States had in effect decided that such an act as the one in question was in conflict with the Federal Constitution, but was of opinion that no provision of. the Constitution of the State of Hew York was violated thereby.

(dissenting.)—By the second section of the thirteenth article of the Constitution of 1846, it is provided that at the general election in 1866, the question, “ Shall there be a convention to revise the Constitution and amend the same ? ” shall be decided by the electors qualified to vote for members of the Legislature ; and the section then declares, that “ in case a majority of the electors so qualified, voting at such election, shall decide in favor of a convention for such purpose, the Legislature at its next session shall provide by law for the election of delegates to such convention.” The Constitution prescribes the qualifications of electors who shall vote on the question of calling the convention, but is entirely silent as to the qualifications of those who shall vote for the election of delegates to such convention, but leaves the whole question to the Legislature to provide by law for such election, and there is nothing in the Constitution restricting or limiting the power of the Legislature upon this subject.

The first section of article 2 of the Constitution has no application to the case. That section is limited in terms to the election of officers under the Constitution, and cannot, upon any just or

This, all will agree, must he so, if these delegates are not to be deemed officers under the Constitution, which, to my mind, is very clear they are not. These delegates exercise no function of government under the Constitution of 1846. They are elected to make a government, to frame a new Constitution, and bring into existence new officers, new powers of government, and new duties. Their duties precede the government which they create. Their whole duties are to create a new government, and not to exercise any functions under the old or existing government.

This proposition is too plain for discussion, and is most ably sustained by the opinion of the Court below, upon which I am willing to repose without further discussion, as I regard the argument of this question, in the opinion of that Court, unanswerable.

This is the view which has always been taken of this subject. In the conventions of 1821 and 1846, delegates were elected who were disqualified to hold office under the Constitution, and their right to sit in the convention was never questioned.

The only remaining question in the case is, whether the Federal Constitution of the United States inhibits the legislation complained of, which prescribes the oath to he taken by the electors, when duly challenged, at the said election for delegates.

The people of the State have the sovereign right to frame their own Constitution, and to prescribe the qualifications of electors. This is a sovereign right in the States, too long conceded to them to be now surrendered. It is, to my mind, a right unquestionably belonging to-the State. This right, I concede, must be exercised in subordination to the Constitution of the United States. It cannot be exercised otherwise, while the right to regulate the' elective franchise resides in the States, as there is nothing in the Federal Constitution restricting the exercise of that right. The general government is one of limited and delegated powers, and it is provided by the tenth article of the amendments to the Constitution, that “ the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This power over the elective franchise in the States is certainly not delegated to the United States.

It only remains to be considered, whether the free and untrammelled exercise of this power to regulate the elective franchise is prohibited to the States by the Constitution of the United States. The Respondent’s counsel in this case claims that it is, and that the act of the Legislature prescribing this form of oath to the elector, when challenged, is prohibited by the Federal Constitu

The Respondent claims and insists that the passage of this act by the Legislature which prohibited him from the exercise of his right to vote without taking this oath, is, in fact, the passage of a bill of attainder against him. This position cannot be sustained; attainder is scarcely known in American law. There were some bills of attainder passed by the States during and shortly after the Revolution, following the English jwecedents. It is to English criminal law that we are to look for a definition of this constitutional prohibition. Attainder is described in English criminal law to be, that extinction of civil rights and capacities which takes place wherever a person who has committed treason or felony receives sentence of death for his crime (Burr. Law Dic., vol. 1, p. 111; 1 Steph. Com. 408). The person so sentenced is called attaint or attainted. He is no longer of any credit or reputation. He cannot be a witness in any Court; neither is he capable of performing the functions of aúnan, for, by an anticipation of his punishment, he is already dead in law (4 Black. Com. 380; 4 Steph. Com. 446 ; 1 Burr. Law Dic. 111). The consequences of attainder are forfeiture and corruption of blood (4 Black. Com. 381; 3 id. 251 ; 1 Burr. Law Dic. 111). Tomlins describes attainder to be attmotura, the stain or corruption of blood which arises from being condemned for any crime (vol. 1, p. 148), and that a bill of attainder is a bill brought into Parliament for attainting persons condemned for high treason (Same, Law Dic. 145, vol. 1).

Attainder is defined by Jacobs, in liis Law Dictionary, to be the stain or corruption of the blood of a criminal capitally condemned (Jacobs’ Law Die., vol. 1, p. 163). Story says, bills of attainder, as they are technically called, are such special acts of the Legislature as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings (3 Story, Com. on the Const. 209).

It still remains to consider whether the prohibition against the passage of ex post facto laws extends to and embraces the statute in question. It is very clear it does not. These words, “ ex post facto,” have a definite technical signification, sanctioned by long usage. They had acquired an established definite signification lone: before British law was known in America. It was never understood to extend beyond criminal matters. An ex post facto law is defined to be a law whereby an act is declared to be a crime, and made punishable as such, when it was not a crime when done, or whereby the act of a crime is aggravated in enormity or punishment. The plain and obvious meaning of this prohibition against the passage of ex post facto laws is, that the Legislature shall not pass any law after a fact done by any citizen which shall have relation to that fact, so as to punish that which was innocent when done, or to add to the punishment of that which was criminal, or to increase the malignity of a crime, or to retrench the rules of evidence so as to make conviction more easy. This is the definition laid down by the Supreme Court of the United States in Calder v. Bull (3 Dallas, 386), and fully approved by Chancellor Kent (1 Kent’s Com., 8th ed. 409, 450. See, also, Fletcher v. Peck, 6 Cranch, 138 ). Chancellor Kent adds : “ Ex. post facto laws relate to penal and criminal proceedings which impose punishments or forfeitures, and not to civil proceedings which affect private rights retrospectively ” (1 Kent’s Com., 8th

This clause of the Constitution of the’United States came before the Supreme Court of this State at an early day, and Judges Spencer, Kent, and Yates all expressed separate opinions, and held that this term, “ ex post facto law,” as used in the Constitution, was limited to criminal cases. Such is the construction put upon this clause of the Constitution by the author of the Federalist, whose extensive and accurate knowledge of the true theory and principles of our government was, probably, not surpassed by any jurist or statesman in this country. If the views above expressed are correct, this judgment must be reversed.

This statute under consideration is not in any sense a criminal statute. It creates no criminal offence, and does not undertake to define any. Keither does it prescribe any punishment for any existing criminal offence. It simply assumes to regulate the right of suffrage, and prescribes the qualifications of persons offering to vote for delegates to the constitutional convention. Such a law, I am confident, was never intended to be embraced by this constitutional prohibition.

The right of suffrage is a political right conferred by the Constitution or laws of the States, and has ever been regarded as exclusively under State control. It may be granted or withheld, or given subject to such restrictions as the majority of those in whom the sovereignty resides may deem most conducive to the public welfare. If we adopt the argument of the Respondent’s counsel in this case, and sustain this judgment, I am not able to perceive why all power in the State governments to ever restrict

In the first of those cases (Cummings v. The State of Missouri, 4 Wal. 277), it is only necessary to state that the Rev. Mr. Cummings, the Appellant, a Roman Catholic priest, was indicted and convicted in the Circuit Court of Pike county, Missouri, fora crime created by the State in its new Constitution, which the Court held was an ex post facto law to punish him for what he had done before the creation of the offence for which he was convicted. If the facts of the case were as the Court assumed them, there is nothing in that case which necessarily controverts the case at bar.

The case Ex parte Garland (4 Wal. 333) is certainly much stronger .to support the Respondent’s views.

The case holds the act of Congress which excluded from-.the practice of the law in the Courts of the United States all attorneys and counsellors of that Court who would not take what is commonly called the test-oath. It was held by the majority of the Court, in the case Ex parte Garland, that the act of Congress which required the attorneys already licensed and practising in the United States

As the Constitution of 1846 does notin any manner prescribe the qualifications of electors in voting for delegates to the constitutional convention, but confers upon the Legislature the duty to prescribe who shall vote, and "to determine the oath which the elector shall take when challenged, no person can claim that he is unlawfully deprived of his right of suffrage by this act. Hone has the right to vote except those who have the right conferred by the statute, and then only upon the terms prescribed by the stab ute. This act of the Legislature, under consideration, is general in terms, and requires every citizen in the State who should claim the right to vote for delegates to the convention to take the same oath, if he shall be challenged, before he shall be entitled to vote. Hone of the persons who were in a condition that they could not take this oath, and were consequently deprived of the right to vote for the delegates to convention, can claim that they have been deprived of any constitutional rights, for no one had the right to vote except those prescribed by this legislative act. Hothing is taken away from them, but a right to vote is given by this act to all who will take the prescribed oath. The Court below, after holding that the Constitution did not prescribe the qualifications, of electors in voting for delegates to the convention, but that the

In the case of Cummings, he was already an ordained and commissioned priest; and in the case of Garland, he was already a licensed practising attorney and counsellor, having been duly licensed by the Court. In the case of this Plaintiff, he was not invested with rights as an elector authorized to vote for delegates to the constitutional convention prior to the passage of the act complained of. The statute, therefore, took away no rights from him.

There are no penalties or criminal offences created by the act, and the same is not in conflict with any constitutional provision, State or Federal. These views lead to reversal of the judgment of the Supreme Court.

Hunt, Cli.J., and Woodeuet, J., concurred in this opinion of Mason, J.

Judgment affirmed.

JOEL TIFFANY, State Reporter.