Miller, J.
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
has not done certain acts mentioned therein; and inflicts the penalty of political disfranchisement, without any preliminary examination or trial, for a refusal to take said oath.
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
engine of political power. Eesorted to in times of high political excitement, they were the means of inflicting great wrong and injustice. They sometimes affected the dead as well as the living, and were the instruments of transcendent iniquity (Dwarris, Part I. 310; 2 Story on Const. § 1344). In a free government such legislation could not be endured, and hence it was that the Constitution so emphatically prohibited it.
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
authority to sustain the views I have expressed ; and the subject has recently undergone a thorough discussion and examination in the Supreme Court of the United States, so as to render further elaboration entirely needless.
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.
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Miller, J.
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
has not done certain acts mentioned therein; and inflicts the penalty of political disfranchisement, without any preliminary examination or trial, for a refusal to take said oath.
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
engine of political power. Eesorted to in times of high political excitement, they were the means of inflicting great wrong and injustice. They sometimes affected the dead as well as the living, and were the instruments of transcendent iniquity (Dwarris, Part I. 310; 2 Story on Const. § 1344). In a free government such legislation could not be endured, and hence it was that the Constitution so emphatically prohibited it.
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
authority to sustain the views I have expressed ; and the subject has recently undergone a thorough discussion and examination in the Supreme Court of the United States, so as to render further elaboration entirely needless.
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 requiring them to establish their innocence, instead of requiring the government to prove their guilt; and in declaring that their innocence can be shown only in one way, by an expurgatory oath. The learned Judge, in reference to the clause of the Constitution which inhibits tlie passage of an ex post facto law, says: “ By an ex post facto law is meant one which imposes a punishment for an act which is not punishable at the time it was committed; or imposes additional punishment to that prescribed'; or changes the rule of evidence, by which less or different evidence is sufficient to convict than was required.” (See also Calder
v.
Bull, 3 Dall. 386-390; Fletcher
v.
Peck, 6 Cranch, 137.) It is clearly manifest that the law under consideration was liable to the objection, that it was both a bill of pains and penalties and an ex post facto law, within the ¡Principles laid down in the case cited. It not only inflicted pains and penalties, but it imposed punishment for acts not punishable at the time they were committed, and changed the rule of evidence as to the testimony required to convict.
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
character, especially when applied as a means of punishment for past acts, not at the time recognized and known to the law as penal or criminal, have been regarded in all countries, in modern times, as odious and inquisitorial; 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 legislative enactments. Such was the ease in our own State, after the termination of the Revolutionary struggle. Severe laws of such a character had been passed during that period; and even after its close, when peace had returned, rigid enactments were made which excluded from the legal profession many eminent lawyers of that generation. A more enlightened and liberal spirit, however, under the guidance of the most able statesmen and the profound jurists of that day, finally prevailed, and those who had been banished from the country were allowed to return, restored to the privileges of citizenship by the repeal of disabling laws; and, in one instance at least, where the party had the misfortune to differ from his neighbors and friends upon the great question of American independence, after years of absence and expatriation in a foreign land, was allowed to resume his former position in the legal profession, where his talents, extensive acquirements, and profound learning shed lustre upon the jurisprudence of the State, and the purity and consistency of his life to an advanced age commanded the respect, confidence, and veneration of the entire community.
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
pose, the Legislature shall provide for the election of delegates to such convention.”
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
has heretofore been held inviolate. These objections are too apparent to require an extended discussion.
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.