[Volume 5, Page 380]
Barker v. People20 Johns. R. 457 N.Y. 1823
Spencer, Ch. J., delivered the opinion of the court.
The plaintiff in error contends that the judgment of the Sessions is erroneous; and that the act on which it is founded, declaring that such disability shall ensue, on a conviction for sending a challenge to fight a duel, is unconstitutional: 1st. As regards the original constitution of this state. 2. As regards the constitution of the United States; and, 3d. As regards the amended constitution of this state. The 1st, 9th, 13th and 33d articles of the original constitution of this state, are said to bear upon this question, and the statute is supposed to be in repugnance to the provisions of those articles. The first article forbids the exercise of any authority over the people, but such as shall be derived from or granted by them. The powers of the state legislature are not conferred by any express grant, but result from the institution of a supreme legislature; and it is an axiom, that the legislature possess all power not expressly forbidden either by the constitution of the state, or the United States, which relates to the prevention of crime, or the well ordering of society. The ninth article constitutes the assembly judges of their own members. I presume, it is intended, by the plaintiff, by referring to that article, to infer, that no other power, not even the legislative, can divest the assembly of this right. If this be so, and it is not necessary to deny it, the only consequence would be, that should the assembly consider the judgment as no disqualification, its operation would be so far defeated, but not, necessarily, any further. The thirteenth article forbids the disfranchisement of any member of this state, unless by the law of the land, or the judgment of his peers. If the duelling act is not otherwise unconstitutional, then the injunctions of this article have been complied with; for the act is the law of the land, and the verdict is the judgment of the plaintiff's peers. The thirty-third article relates to judgments on impeachments, and restrains their operation to removal from office, and disqualification to hold any place of honor, trust or profit, under this state. The application of this article to the question before us, is not perceived. I am, therefore, of opinion, that there is nothing in the original constitution which the act violates. When it was before the council of revision, the objections which some of the council, and I was one of them, had to the act, related to other parts of it, and not to the one now objected to. The supposed repugnancy of the act to the constitution of the United States, as it is urged, is to the eighth amendment, which declares, that cruel and unusual punishments shall not be inflicted. The disfranchisement of a citizen is not an unusual punishment; it was the consequence of treason, and of infamous crimes, and it was altogether discretionary in the legislature to extend that punishment to other offences.
The judgment rendered in the court below, is supposed to be erroneous, as repugnant to, and contravening the third section of the first article, the second section of the second article, the second section of the fifth article, the first and thirteenth sections of the seventh article, and the first section of the ninth article of the amended constitution. The third section of the first article, giving to the senate and assembly the right to judge of the qualifications of their members, has been commented on, as well as the second section of the fifth article, which relates to judgments on impeachments; and also the first section of the seventh article. The second section of the second article ordains, that laws may be passed, excluding from the right of suffrage, persons who have been, or may be, convicted of infamous crimes. The thirteenth section of the seventh article, among other things, ordains, that such acts of the legislature as were then in force, should be, and continue the law of this state, subject to such alterations as the legislature shall make concerning the same; but all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this constitution, are hereby abrogated. The first section of the ninth article ordains, among other things, that those parts of the amended constitution which relate to the right of suffrage; the number of members of assembly thereby directed to be elected; the apportionment of members of assembly; the elections thereby directed to commence on the first Monday of November, 1822, should be in force, and take effect from the last day of February then next. The sixth article has also been relied on, which ordains, that no other oath, declaration or test shall be required, as a qualification for any office or public trust than the one prescribed, which is to support the constitutions of the United States and of this state, and faithfully to discharge the duties of the office, according to the best ability of the officer.
It may admit of much doubt, whether the legislature are not restrained from excluding from the right of suffrage, [Volume 5, Page 381] any other persons than such as have been, or may be, convicted of infamous crimes. The enumeration of offences, on the conviction for which power is given to the legislature, to exclude the persons convicted, by necessary implication, denies the power in any other cases. The offence of which the plaintiff has been convicted, is not an infamous one. The law has settled what crimes are infamous; they are treason, felony, and every species of the crimen falsi, such as perjury, conspiracy and barratry. (Peake's Evid. 126, 127.) If this be so, then the inquiry is, whether the right of suffrage, necessarily implies the right of being voted for. The amended constitution does not prescribe the qualifications of members of assembly; and, with respect to senators, it requires only that they shall be freeholders. There are particular qualifications for a governor, but for all other offices the constitution is silent as to qualification. I cannot think, that the right of voting and being voted for are convertible terms; indeed, we see they are not, for a great class of voters are not required to be freeholders, and yet it is necessary to the qualification of a senator or a governor, that he should be a freeholder; and, with respect to the governor, he must be a native citizen of the United States, thirty years of age, and a resident within the state for five years. The right of suffrage is, therefore, distinct from the right of being eligible to an office.
As to the oath of office, prescribed by the 6th article, and the provision, that no other oath, declaration or test shall be required; it is contended, that the word test has a most extensive meaning, and prohibits the establishing any other rule by which the capacity of a person to hold an office shall be determined, than that defined, the oath of the person appointed or elected. I cannot accede to this. In my judgment, the exclusion of any other oath, declaration or test, as a qualification for an office or public trust, means only, that no other oath of office shall be required. It was intended to abolish the oath of allegiance and abjuration, or any political or religious test, as a qualification. The provision, that no other oath is to be required as a test, imports nothing with respect to the other qualifications. In the case of a person elected a senator, or a governor, the oath has no reference to the qualifications required, and they may be inquired into by some other tribunals. If an alien should be elected, he can well take the oath; but surely, the question whether he could hold the office would be open to inquiry.
Upon the whole, it appears to us, that there exists no constitutional objection to the conviction; and the judgment must be affirmed.
© 1987 by The University of Chicago