UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 BRIEF 
 
 IN RE 
 
 H. R. Bills Nos. 1478, 6153, and the Petition of the 
 
 Citizens of Bear Lake County, Idaho 
 
 Territory. 
 
 I. 
 
 The legislative assembly of Idaho territory, during the session 
 of 1884-5, passed " An act to provide for holding elections and 
 prescribing the qualifications of electors, and for other purposes," 
 which was approved Feb. 3, 1885. 
 
 The second section of this act is as follows : 
 
 " SEC. 2. No person under guardianship, non compos mentis, or insane, nor 
 any person convicted of treason, felony, or bribery, in this territory, or in 
 any other state or territory in the Union, unless restored to civil rights, nor 
 any person who is a bigamist or polygamist, or who teaches, advises, counsels, 
 or encourages any person or persons to become bigamists or polygamisls, or 
 to commit any other crime defined by law, or to enter into what is known as 
 plural or celestial marriage, or who is a member of any order, organization, 
 or association which teaches, advises, or counsels, or encourages its members 
 or devotees, or any other persons to commit the crime of bigamy or polygamy, 
 or any other crime defined by law, either as a right or ceremony of such 
 order, organization or association, or otherwise, shall be permitted to vote at 
 any election, or to hold any position or office of honor, trust, or profit within 
 this territory." 
 
 To enforce the provisions of this section the following test oath 
 was prescribed ; any person who could not take the same, or de- 
 clined so to do, was thereby disfranchised : 
 
 " SEC. 1(5. If any person offering to vote shall be challenged by any judge 
 or clerk of the election, or any other person entitled to vote at the same poll, 
 and either judge shall challenge any person offering to vote whom he shall 
 know or suspect not to be qualified, one of the judges shall declare to the 
 person so challenged the qualifications of an elector ; if such person shall
 
 t h.'.n declare himself duly qualified, and the challenge be not withdrawn, one 
 of the judges shall then tender him the following oath : 
 
 " You do solemnly swear (or affirm) that you are a male citizen of the United 
 States, over the age of twenty-one years ; that you have actually resided in 
 this territory for four months last past, and in this county thirty days ; that 
 you are not a bigamist or polygamist ; that you are not a member of any order, 
 organization, or association which teaches, advises, counsels, or encourages 
 its members, devotees, or any other person to commit the crime of bigamy 
 or polygamy, or any other crime defined by law, as a duty arising or result- 
 ing from membership in such order, organization, or association, or which 
 practices bigamy or polygamy, or plural or celestial marriage as a doctrinal 
 rite of such organization ; that you do not, either publicly or privately, or 
 in any manner whatever, teach, advise, counsel, or encourage any person to 
 commit the crime of bigamy or polygamy, or any other crime defined by law, 
 either as a religious duty or otherwise ; that you regard the constitution of 
 the United States and the laws thereof, and of this territory, as interpreted 
 by the courts, as the supreme law of the laud, the teachings of any order, 
 organization, or association to the contrary notwithstanding, and that you 
 have not voted at this election. So help you God !" 
 
 The forty- third section of the same act makes it per jury for any 
 one to falsely take the foregoing oath. 
 
 The same legislative assembly passed " An act to fix the amount 
 of the official bonds of certain county and precinct officers and to 
 prescribe official oaths of officers." which was approved Dec. 23, 
 1884. Section 3 of this act requires all such officers to take the 
 following oath : 
 
 " I do solemnly swear that I am a male citizen of the United States, over 
 the age of twenty-one years ; that I have actually resided in this territory 
 for four months last past, and in this county thirty days before my election 
 or appointment ; that I am not a bigamist or polygamist ; that I am not a 
 member of any order, organization, or association which teaches, advises, 
 counsels, or encourages its members, devotees, or any other persons, to com- 
 mit the crime of bigamy or polygamy, or any other crime defined by law, as 
 a duty arising or resulting from membership in such order, organization, or 
 association, or which practices bigamy or polygamy, or plural or celestial 
 marriage as a doctrinal rite of such organization ; that I do not, either pub- 
 licly or privately, or in any manner whatever, teach, advise, counsel, or en- 
 courage any person to commit the crime of bigamy or polygamy, or any other 
 crime defined by law, either as a religious duty or otherwise ; that I regard 
 the constitution of the United States and the laws thereof, and of this terri- 
 tory, as interpreted by the courts, as the supreme law of the laud, the teach- 
 ings of any order, organization, or association to the contrary notwithstand- 
 ing. So help me God ! " 
 
 The laws of Idaho territory require jurors to have the qualifi-
 
 cations of electors, and persons summoned as jurors, who by 
 reason of the aforesaid enactments are disfranchised, are also dis- 
 qualified for jury duty. 
 
 The result is that more than three thousand citizens of the 
 United States and of the territory of Idaho are disfranchised as 
 electors, disqualified as office-holders, and prohibited from serving 
 as jurors. In several counties in the territory the population is 
 largely of those who are adherents of the Mormon Church. In 
 Bear Lake county almost all the inhabitants are of that religious 
 faith. The petition of 783 of the residents of that county who 
 are monogamists, and yet Mormons, has been presented to the 
 House of Representatives and referred to this committee. It sets 
 forth in plain unvarnished language the condition to which the 
 affairs of that county have been reduced by this extraordinary 
 legislation, and shows the monstrous injustice of disfranchising 
 and disqualifying, in this wholesale manner, a whole body of peo- 
 ple who are absolutely without offence against any law. The 
 legislative enactments, by which this has been done, are clearly 
 forbidden by the constitution of the United States. 
 
 These persons who are thus wantonly disfranchised are citizens 
 of the United States and of Idaho territory. They are honest, 
 sober, moral, law-abiding, industrious, and useful citizens. They 
 have reclaimed a desert land and made it to blossom like the rose 
 Their only offence is their religion. They are proscribed solely 
 for their faith. A whole county is, in consequence of these un- 
 constitutional enactments of the territorial assembly, wholly with- 
 out law, and the people without power to choose a single officer, 
 and without the means of protecting themselves against the law- 
 less who come among them. The courts are paralyzed. 
 
 n. 
 
 House Bills 1478 and 6153 propose to extend the unconsti- 
 tutional provisions of these monstrous Idaho laws to all the 
 territories of the United States. Their introduction in the House 
 of Representatives was procured by federal officials and other 
 designing and unscrupulous men in Utah and Idaho who came 
 hither for the purpose and who have been aided and abetted by par- 
 ties here and elsewhere who expect to profit thereby. The avowed 
 purpose is to disfranchise all the adherents of the Mormon Church
 
 in Utah territory and turn over the government of that great and 
 prosperous community to a factious minority which comprises less 
 than one-twentieth of the inhabitants thereof. Save in three and 
 possibly four counties of that territory there would be scarcely a 
 sufficient number of qualified voters remaining, after all Mormons 
 were disfranchised, to fill the offices. The affairs of the terri- 
 tory, with its assessed property aggregating many millions of dol- 
 lars, would be handed over to an adventurous class who, outside 
 a few localities, have no interest whatever in the welfare of the 
 community. Instead of one county like Bear Lake, in Idaho, be- 
 ing without autonomy, without officers, without protection for 
 life and property, there would be not less than twenty in that 
 condition in Utah. 
 
 The Idaho legislation makes belief an offence for which elec- 
 tors can be disqualified, and the House Bills propose to do the 
 same. In this respect the territorial legislation, and this proposed 
 congressional legislation, goes far beyond the act of Congress of 
 March 22, 1882, commonly known as the Edmunds law. That 
 expressly provides that any person otherwise elligible to vote 
 shall not be excluded from the polls on account of any opinion 
 such person may entertain on the subject of bigamy or polygamy. 
 
 The Edmunds law disqualifies bigamists or polygamists, and 
 persons who offend by unlawful cohabitation. These bills pro- 
 pose to disqualify all members of " a sect or organization of peo- 
 ple who denominate themselves the Church of Jesus Christ of 
 Latter-day Saints, or Mormons." 
 
 This is equivalent to prescribing a religious test as a qualifica- 
 tion for electors and for holding an office or public trust. The 
 constitution of the United States declares that " no religious test 
 shall ever be required as a qualification to any office or public 
 trust under the United States." 
 
 Moreover mere opinions, beliefs, thoughts, desires, are beyond 
 the control of human agencies. They may be altogether wicked 
 and, as the old indictments ran, "instigated by the devil," but 
 unless manifested by overt acts, cognizance thereof must be rele- 
 gated to " the Searcher of all hearts." The time was when men 
 might be punished for " harboring evil designs against the, state," 
 and helpless old women could be condemned, hung, or burned for 
 the exercise of " an evil eye." The rack and the boot and " the
 
 water test," supplied the necessary evidence if there was lack of 
 swearing by delators, or common repute was deemed insufficient. 
 It is a fact beyond dispute established by official statistics 
 that less than one-twentieth of the Mormons have practised polyg- 
 amy, and the Utah commissioners report that " few, if any," now 
 enter into the forbidden relations. And yet it is proposed to de- 
 prive the vast majority more that nineteen-twentieths who have 
 in nowise offended, of one of the highest and dearest rights of 
 citizenship ! 
 
 HI. 
 
 There are some rights the Congress of the United States can- 
 not lawfully touch even if they are not " nominated in the bond." 
 The right of community self-government lies at the very founda- 
 tion of our government. It is a birthright which Saxon, Teuton, 
 and Celt have never ceased and will never cease to contend for. 
 Tacitus marked it as the distinguishing feature of the government 
 of the fierce, liberty-loving races of northern Europe, and from 
 his day to ours no people have been able to preserve their liberties 
 who failed to recognize, cherish, and maintain it as the vital princi- 
 ple of free institutions. 
 
 Does any one doubt that the people of the thirteen colonies did 
 not include among their " certain unalienable rights " this one of 
 community self-government ? Without it the Declaration of In- 
 dependence would have been meaningless. If there is "a right 
 inestimable " to the people " and formidable to tyrants only " it 
 is that one which secures to them the management and control of 
 their local affairs. What were among the chief causes assigned by 
 our patriot forefathers in justification of the colonies separating 
 from the mother country ? " For taking away our charters, abol- 
 ishing our most valuable laws, and altering, fundamentally, the 
 powers of our government. For suspending our own legislatures, 
 and declaring themselves invested with power to legislate for us 
 in all cases whatsoever." 
 
 Will the Congress of the United States undertake to do what 
 the British Parliament could not do without violating the prescrip- 
 tive rights of freeborn English subjects ? Will it assert that its 
 power over the people of a territory is greater than that of the 
 Parliament of England over its colonies ? Will it attempt to evade
 
 6 
 
 constitutional limitations, and ignore positive prohibitions by the 
 contemptible and paltry pretexts upon which this proposed legis- 
 lation is sought to be justified? 
 
 The elective franchise, the right of suffrage, is the highest privi- 
 lege of citizenship. Alexander Hamilton declared that 
 
 " A share in the sovereignty of the state which is exercised by the citizen 
 at large in voting at elections is one of the most important rights of the sub- 
 ject, and in a republic ought to stand foremost in the estimation of the law. 
 It is that right by which we exist as a free people, and it will certainly there- 
 fore never be admitted that less ceremony ought to be used in divesting any 
 citizen of that right than in depriving him of his property. Such a doctrine 
 would ill-suit the principles of the revolution which taught the inhabitants 
 of this country to risk their lives and fortunes in asserting their liberty, or, 
 in other words, their right to a share in the government. Let me caution 
 against precedents which may in their consequences render our title to this 
 great privilege precarious." 
 
 Mr. Justice Washington in Corjield v. Coryell, (4 Washington, 
 371,) in speaking of the privileges belonging " to citizens of all free 
 countries" enumerates "the elective franchise." Mr. Justice 
 Miller in delivering the opinion of the Supreme Court of the United 
 States in Crandell v. The State of Nevada, (6 Wall., 36,) held that 
 citizens of the United States were entitled " to seek its protection, 
 to share its offices, to engage in administering its functions." 
 
 The Supreme Court unanimously held in Dred Scott v. Sanford, 
 (19 Howard, 393,) that 
 
 ' ' The United States, under the present constitution, cannot acquire terri- 
 tory to be held as a colony, to be governed at its will and pleasure. But it 
 may acquire territory which, at the time, has not a population that fits it to 
 become a state, and may govern it as a territory until it has a population 
 which, in the judgment of Congress, entitles it to be admitted as a state of 
 the Union. During the time it remains a territory, Congress may legislate 
 over it wilhin the scope of its constitutional powers in relation to citizens of 
 the United States and may establish a territorial government, and the form 
 of this local government must be regulated by the discretion of Congress, but 
 with powers not exceeding those which Congress itself, by the constitution, 
 is authorized to exercise over citizens of the United States in respect to their 
 rights of person, or rights of property. The territory thus acquired is ac- 
 quired by the people of the United States for their common and equal benefit, 
 through their agent and trustee, the federal government. Congress can 
 exercise no power over the rights of persons or property of a citizen in the 
 territory which is prohibited by the constitution." 
 
 Judge Black, in discussing proposed legislation by Congress, 
 analogous to this you are asked to recommend said
 
 " It is true, also, that the general government may give the colonists a 
 charter, and call it an act of incorporation or an organic act. This was what 
 the imperial government of England did for the several colonies that settled 
 on its lands in America. But the charter must be a free one. If it abridges 
 the liberty of the people to do as they please about matters which concern 
 nobody else, it is void. Even if the colonists could consent, for a consider- 
 ation, to accept an organic act imposing restraint upon their right of self- 
 government, they could throw it off as a nullity ; for the birthright of a free- 
 man is inalienable. I need not say that foreigners naturalized are on a level 
 with native citizens. 
 
 " As Congress cannot give, so it cannot withhold the blessing of popular 
 government in a territory. But the legislation now proposed in addition to 
 that already passed would blacken the character of the federal government 
 with an act of cruel perfidy. The charter you gave to Utah was in full ac- 
 cordance with the broad principle of American liberty. You organized for 
 them a free territorial government, put into their hands all the machinery 
 that was needed to carry it on ; the ballot to be used under regulations of 
 their own ; officers chosen by themselves to administer their local affairs, 
 collect the taxes and take charge of their money, and a legislature repre- 
 senting them responsible to them clothed with exclusive power to make 
 their laws, and to alter them from time to time as experience might show to 
 be just and expedient. Gilding your invitation with this offer of free gov- 
 ernment, you attracted people from every state and from all parts of the 
 civilized world, whose industry scattered plenty over that barren region and 
 made the desert bloom like a garden. Now you are urged to break treach- 
 erously in upon their security ; supersede the laws which they approve by 
 others which are odious to them ; make their legislation a mockery by de- 
 claring that yours is exclusive ; drive out the officers in whom they confide, 
 and fill their places with raging and rapacious enemies ; take away their 
 right of suffrage, and with it all chance of peaceable redress ; break down 
 the whole structure of the territorial government, under which you 
 promised to give them a permanent shelter. Would not this be a case of 
 punic faith ? Apart from all question of constitutional morality, the con- 
 duct of the wrecker who burns false lights to mislead the vessel he wishes 
 to plunder does not seem to me more perfidious." 
 
 IV. 
 
 The XIV amendment to the constitution made "all persons 
 born or naturalized in the United States, and subject to the juris- 
 diction thereof," citizens of the same, " and of the state wherein 
 they reside." It forbade the abridgment of the "privileges or 
 immunities of citizens of the United States '' by the states, and 
 prohibited any state depriving " any person of life, liberty, or 
 property, without due process of law." That which is forbade
 
 8 
 
 the states in respect *to the personal or civil rights of the citizen 
 is equally prohibited to the federal power. 
 
 The elective franchise, the righ't to hold office, to engage in ad-' 
 ministering the functions of the government, is a privilege of the 
 citizens of the United States.* They cannot be deprived of this 
 right " without due process of law." What is " due process of 
 law?" The words, "due process of law," were undoubtedly in- 
 tended to convey the same meaning as the words, " by the law of 
 the land," in Magna Charta. Lord Coke, in his commentary on 
 those words, (2 Inst., 50,) says they mean " due process of law." 
 Den. v. Murray, (18 Howard, 272.) " ' By the law of the land,' or 
 ' due process of law,' does not," says Mr. Justice Curtis, " mean 
 any act which the assembly may choose to pass. If it did, the 
 legislative will could inflict a forfeiture of life, liberty, or property 
 without a trial." (Green v. Briggs, 1 Curtis, 311.) 
 
 The power of Congress is limited by " certain vital principles in 
 our free republican government," as well as by the plain letter of 
 the constitution. Chief-Justice Marshall, in Fletcher v. Peck, (6 
 Cranch, 87,) says : 
 
 "It may well be doubted whether the nature of society and of government 
 does not prescribe some limit to legislative power." 
 
 "The fundamental maxims of a free government seem to require that the 
 rights of personal liberty and private property should be sacred." ( Wilkin- 
 son v. Leland, 2 Peters, 654.) 
 
 " Independent of that instrument, and of any express restriction in the 
 constitution of the state, there is a fundamental principle of right and jus- 
 tice inherent in thn nature and spirit of the social contract, (in this country 
 at least,) the character and genius of our governments, the causes from which 
 they spring, and the purposes for which they were established, that rises 
 above the restraints and sets bounds to the power of legislation, which the 
 legislature cannot pass without exceeding its lawful authority." {Regents of 
 Md. v. Williams, 9 Gill & Johnson, 365.) 
 
 " There are acts which the federal or state legislature cannot do without 
 exceeding their authority. There are certain vital principles in our free re- 
 publican governments which will determine and overrule an apparent and 
 flagrant abuse of legislative power : as to authorize manifest injustice by 
 positive law ; or to take away that security for personal liberty or private 
 property, for the protection whereof the government was established." ( Cal- 
 der v. Bull, 3 Dallas, 386.) 
 
 " But in this country the weight of authority will be found in favor of the 
 
 *Carfield v. Coryell, 4 Washington, 371. Crandall 0. State of Nevada, 6 
 Wallace, 36. Alexander Hamilton. Phocion's Pamphlets.
 
 9 
 
 doctrine that governments are not clothed with absolute power, but that, in- 
 dependently of written constitutions, there are restrictions upon the legisla- 
 tive power, growing out of the nature of the civil compact and the natural 
 rights of man ; and that when certain boundaries are over-leaped, and a law 
 passed subversive of the great principles of republican liberty and natural 
 justice as for instance, taking away without cause the liberty of the citizen 
 that it would become the imperative duty of the courts to pronounce such a 
 statute inoperative." (Campbell v. The State of Georgia, 11 Ga., 353.) 
 
 " What the legislature cannot do directly it cannot do by indirection. If 
 it has no power expressly to take away the right, it has none to define it 
 away, or unreasonably to abridge or impede its enjoyment by laws profes- 
 sing to be merely remedial." (Monroe et al. v. Collins, 17 Ohio, 665.) 
 
 " Laws must be reasonable, uniform, and impartial, and must be calculated 
 to facilitate and secure rather than to subvert or impede the exercise of the 
 right to vote." (12 Pickering, 488.) 
 
 V. 
 
 The Supreme Court of the United States, and the highest 
 courts of all the states, where the question has been adjudicated, 
 have held that the citizen cannot be disfranchised save for crime, 
 and then only by "due process of law," which Mr. Justice Curtis 
 says " necessarily implied and included the right to answer to and 
 contest the charge, and the consequent right to be discharged 
 from it unless it is proved." 
 
 The case of dimming <s v. The State of Missouri, (4 Wall.,) is 
 directly in point. Therein the whole subject of the disfranchise- 
 ment and disqualification of the citizen is carefully considered, 
 and the law laid down by the Supreme Court of the United States 
 was in exact conformity to the doctrine held by the greatest jurists 
 who have presided over the courts of last resort in many of the 
 states of the Union. 
 
 The constitution of the state of Missouri, made in 1865, disfran- 
 chised and disqualified all persons who could not swear to certain 
 things, including therein their sympathies and desires matters of 
 mental operation independent of acts and deeds. A Reverend 
 Mr. Cummings, a priest of the Catholic Church who refused to 
 take this prescribed oath and persisted in ministering the offices 
 of his sacred profession, was prosecuted and convicted in one of the 
 circuit courts of the state, and the judgment being affirmed on 
 appeal by the supreme court of the state the case came before the 
 Supreme Court of the United States on writ of error. It is one
 
 10 
 
 of the great cases wherein the highest judicial tribunal of the 
 land has fixed the metes and bounds of legislative power, and de- 
 termined the rights of citizens. In connection with ex parte Gar- 
 land, passed upon at the same time by the court, the whole sub- 
 ject of test oaths is very elaborately and most luminously con- 
 sidered. 
 
 The important question settled by the Supreme Court in these 
 cases, which is involved in the bill now before the committee, is 
 that a test oath of the description embodied therein is in the na- 
 ture of a bill of attainder. Mr. Justice Field in the opinion of 
 the court says : 
 
 " A bill of attainder is a legislative act which inflicts punishment without 
 a judicial trial. 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 judge ; 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 safe- 
 guards of trial ; it determines the sufficiency of proofs produced, whether 
 comformable 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." 
 
 " These bills," says Justice Field, " are generally directed against individ- 
 uals by name ; but they may be directed against a whole class. The bill 
 against the the Earl of Kildare and others, passed in the reign of Henry VIII, 
 enacted that ' all such persons which be or heretofore have been comforters, 
 abettors, partakers, confederates, or adherents unto the said ' late Earl, and 
 certain other parties who were named, ' in his or their false and traitorous 
 acts and purposes, shall in likewise stand and be attainted, adjudged, and 
 convicted of high treason ;' and that ' the same attainder, judgment, and 
 conviction against the said comforters, abettors, partakers, confederates, 
 and adherents, shall be as strong and effectual in the law against them, and 
 every of them, as though they and every of them had been specially, singu- 
 larly, and particularly named by their proper names and surnames in the said 
 act.' 
 
 " These bills may inflict punishment absolutely, or may inflict it condi- 
 tionally. 
 
 ' ' The bill against the Earl of Clarendon passed in the reign of Charles the 
 Second, enacted that the Earl should suffer perpetual exile, and be forever 
 banished from the realm ; and if he returned or was found in England, or 
 in any other of the King's dominions after the first of February, 1667, he should 
 suffer the pains and penalties of treason ; with the proviso, however, that if he 
 surrendered himself before the said first day of February for trial, the pen- 
 alties and disabilities declared should be void and of no effect."
 
 11 
 
 " The clauses in question subvert the presumptions of innocence, and al- 
 ter the rules of evidence, which heretofore, under the universally recognized 
 principles of common law, have been supposed to be fundamental and un- 
 changeable. They assume that the parties are guilty ! They call upon the 
 parties to establish their innocence, and they declare that such innocence can 
 be shown only in one way, by an inquisition in the form of an expurgatory 
 oath, into the conscience of the parties." 
 
 ********* 
 
 " The provision of the federal constitution, intended to secure the liberty 
 of the citizen, cannot be evaded by the form in which the power of the state 
 is exerted If this were not so, if that which cannot be accomplished by 
 means looking directly to the end can be accomplished by indirect means, 
 the inhibition may be evaded at pleasure. No kind of oppression can be 
 named against which the framers of the constitution intended to guard which 
 may not be effected. " (4 Wall., 277.) 
 
 VII. 
 
 The decisions of the state courts are equally clear and emphatic. 
 The act of Congress of March 3, 1865, prescribed, as an addi- 
 tional penalty for the crime of desertion from the military or 
 naval service of the United States, forfeiture of citizenship and in- 
 capacity to hold any office of trust or profit under the United 
 States, or to exercise any rights of citizens thereof. Reily, a 
 citizen of Franklin county, Penna., was drafted and evaded ser- 
 vice, and was thereupon registered as a deserter by the provost 
 marshal as the law required. Otherwise he was a qualified voter 
 under the laws of Pennsylvania. His vote was rejected by the 
 election officers on the ground that he was disqualified under the 
 act of Congress of March 3, 1865. Thereupon he began action 
 against Huber, one of the election officers, and upon an agreed 
 statement of facts the court below awarded judgment for plaintiff. 
 The case was made up for decision thereon by the supreme court 
 of the state. 
 
 Judge Strong, subsequently one of the justices of the Supreme 
 Court of the United States, delivered the opinion of the court. 
 It was held that inasmuch as Reily had not been convicted by 
 any court of the crime of desertion he was a qualified voter. The 
 language of the court is as follows : 
 
 ' ' The fifth article of the amendments to the constitution ordains ' that no 
 person shall be held to answer for a capital or other infamous crime, unless 
 on a presentment or indictment of a grand jury, except in cases arising in 
 the land or naval forces, or in the militia when in actual service in time of
 
 12 
 
 war or public danger, nor shall any person be subject for the same offence to 
 be twice put in jeopardy of life or limb ; nor shall he be compelled in any 
 criminal case to be a witness against himself, nor be deprived of life, liberty, 
 or property without due process of law.' 
 
 " The sixth article secures to the accused in all criminal prosecutions cer- 
 tain rights, among which are a speedy trial by a jury of the vicinage, infor- 
 mation of the nature and cause of the accusation, face to face presence of 
 witnesses, and the assistance of counsel. The spirit of these constitutional 
 provisions is, briefly, that no person can be made to suffer for a criminal offence 
 unless the penalty be inflicted by due process of law. What that is has been 
 often defined, but never better than it was, both historically and critically, by 
 Judge Curtis, of the Supreme Court of the United States, in Den v. Murray et 
 al. , (18 Howard, 272.) It originally implies and includes a complainant, a de- 
 fendant, and a judge, regular allegations, opportunicy to answer, and a trial 
 according to some settled course of judicial proceeding. It must be admitted 
 there are a few exceptional cases. Prominent among these are summary pro- 
 ceedings to recover debts due to the government, especially taxes and sums 
 due by defaulting officers. But I can call to mind no instance in which it has 
 been held that the ascertainment of guilt of a public offence and the im- 
 position of legal penalties can be in any other mode than by trial according 
 to the law of the land or due process of law ; that is, the law of the particu- 
 lar case, administered by a judicial tribunal authorized to adjudicate upon it. 
 And I cannot persuade myself that a judge of elections or a board of election 
 officers constituted under state laws is such a tribunal. I cannot think 
 they have power to try criminal offenders, still less to adjudge the guilt 
 of an alleged violator of the laws of the United States. A trial before such 
 officers is not due process of law for the punishment of offences according to 
 the meaning of that phrase in the constitution. There are, it is true, many 
 things which they may determine, such as the age and residence of a person 
 offering to vote, whether he has paid taxes, and whether, if born an alien, he 
 has a certificate of naturalization. These things pertain to the ascertain- 
 ment of a political right. But whether he has been guilty of a criminal 
 offence, and has, as a consequence, forfeited his right, is an inquiry of a dif- 
 ferent character. Neither our constitution nor our law has conferred upon 
 the judges of elections any such judicial functions. They are not sworn to 
 try issues in criminal cases. They have no power to compel the attendance 
 of witnesses, and their judgment, if rendered, would be binding upon no 
 other tribunal. Even if they were to assume jurisdiction of the offence 
 described in the act of Congress, and proceed to try whether the applicant 
 for a vote had been duly enrolled and drafted, whether he had received notice 
 of the draft, whether he had deserted and failed to return to service, or failed 
 to report to a provost marshal, and whether he had justifying reasons for 
 such failure, and if after such trial they were to decide that he had not for- 
 feited his citizenship all this would not amount to an acquittal. It would not 
 protect him against a subsequent similar accusation and trial ; would not pro- 
 tect him against trial and punishment by a court martial. Surely that is no
 
 13 
 
 trial by due process of law the judgment in which is not final, decides noth- 
 ing, but leaves the accused exposed to another trial in a different tribunal, 
 and to the imposition by that other tribunal of the full punishment prescribed 
 by law. Moreover it is not in the power of Congress to confer upon such a 
 tribunal, which is exclusively of state creation, jurisdiction to try offences 
 against the United States." (Huber v. Reily, 3, P. F. Smith, 112.) 
 
 The same broad principle was laid down by the supreme court 
 of New York in the case of Gotcheus v. Matheson, (58 Barbour, 
 152.) 
 
 The plaintiff having been deprived of his vote by the inspectors 
 of election in district No. 2 of the town of Triangle, in Broome 
 county. New York, brought action against the same for damages. 
 The inspectors set up as a defence the act of Congress of March 
 3, 1865, and averred that, believing the plaintiff to be a deserter, 
 they, upon the proper challenge being made to his vote, admin- 
 istered to him the oath prescribed in case of challenge, whereupon 
 he refusing to answer all questions touching his being a de- 
 serter his vote was rejected. The defence was demurred to by 
 plaintiff on the ground that it did not constitute a defence, 
 and judgment of court was given. Justice Murray in his opinion 
 says : 
 
 "If it was the intention of Congress, by this act, without a trial, or the 
 adjudication of any court, to deprive this class of persons of citizenship, it 
 would come under that class of legislation designated as bills of attainder." 
 
 " Citizenship of the United States is an important right, and the privileges 
 conferred by it are important privileges, dearly prized by the American 
 people. An act that provides for a forfeiture thereof imposes a penalty, and 
 comes within the provisions of the constitution in regard to bills of attainder." 
 
 Election officers cannot be made the proper tribunal for deter- 
 mining the guilt or innocence of accused persons : 
 
 " The inspectors of election are not in a position to adjudicate these matters. 
 They are not authorized to do so. They can determine who are citizens, but 
 they cannot adjudge and declare, as an original adjudication, that the plain- 
 tiff's citizenship has been forfeited by the commission of an offence. They 
 could receive as evidence such an adjudication made by another court, and 
 give effect to its provisions by rejecting the vote, and thus deprive the per- 
 son of the privilege of citizenship, but further than this I do not see that 
 they could go." (Ootcheus v. Matfoson, 58 Barbour, 152.) 
 
 It has been uniformly held, both in England and in this country, 
 that an election officer is " neither a judge nor anything like a 
 judge." (Ashby v. White, 2 Ld. Boym, 938. Jenkins \. Wal- 
 dron, 11 Johns, 114. The People v. Pease, 30 Barbour, 588.)
 
 14 
 
 In the matter of Dorset/, (7 Porter, 293,) the supreme court of 
 Alabama held that a trial and conviction was necessary before a 
 citizen could be disfranchised. 
 
 A statute of Alabama disqualified persons who had engaged in 
 duels, and prescribed a test oath. Mr. J. L. Dorsey declining to 
 take this oath was refused admission to the bar, and the case com- 
 ing up to the supreme court of that state was elaborately con- 
 sidered in all its bearings. 
 
 In the course of the opinion, the court says : 
 
 " The tenth section of the bill of rights, among other things, provides that 
 no one shall be compelled to give evidence against himself, nor shall he be 
 deprived of his life, liberty, or happiness, but by due course of law. After 
 a patient and mature examiuation of the matter, I am of opinion that the 
 requisition of the expurgatory oath exacted by this law offends against this 
 portion of the bill of rights. It is so offensive to the first principles of jus- 
 tice to require a man to give evidence against himself in a penal case that, 
 independent of the constitutional interdict no one in this enlightened age 
 will be found to advocate the principle. But it may be said, this is not a case 
 of this kind, as no corporal or pecuniary punishment is the consequence of 
 a refusal to take the oath against duelling. But are not the results the same 
 whether punishment follows from the admission or is imposed as a conse- 
 quence of silence ? Can ingenuity make a distinction between a punishment 
 inflicted in this mode, as a consequence of the refusal to take the oath, by 
 closing one of the avenues to wealth and fame, and a positive pecuniary 
 mulct ? If there be a difference, I think it entirely in favor of the latter so 
 far as the amount or weight of the penalty could affect the decision of this 
 question." 
 
 Justice Goldthwaite in the same case said : 
 
 " I have no hesitation in declaring that this act provides a mode of ascer- 
 taining and punishing guilt which is not only unwarranted by the constitu- 
 tion but is also in direct contravention of several of the most important 
 provisions of the declaration of rights, by which the liberties and privileges 
 of the citizen are guarded." 
 
 The supreme court of Kentucky in Gaines v. Buford, (1 Dana, 
 510,) wherein was involved the constitutionality of an act of the 
 legislature forfeiting titles to public lands unless improvements 
 thereon were made within a given time, said 
 
 " That the term (bills of attainder) should be received in the large sense thus 
 given to it is consonant with the true republican character of our institutions. 
 A condemnatory act of the legislature inflicting upon an individual, or class of 
 individuals, pains and penalties is as much within the reason of the prohibi- 
 tion as if it inflicted capital punishment. They are both equally hostile to
 
 15 
 
 the principles of civil liberty and the spirit of our written constitutions. 
 They are equally engines of tyranny and oppression, and equally unsuited to 
 the government of a free people." 
 
 " Understanding, then, the term, bills of attainder, as embracing bills of 
 pains and penalties, the act in question would seem to fall under this inhibi- 
 tion. That it is a highly penal law, inflicting a most grievous penalty for the 
 omission of the thing commanded to be done, is beyond dispute. But it is 
 not the weight of the penalty, nor the character of the offence, that makes it 
 a bill of attainder. But it is the confiscation of the property of individuals 
 which it attempts to make before any condemnation, and without any con- 
 demnation, for the offence designated, either in personam or in rem. When 
 the state rightfully acquires the property of a citizen by forfeiture, it is, as 
 the punishment annexed by law, to some illegal act or negligence of its 
 owner. That the legislature may make the act or omission illegal, and pre- 
 scribe forfeiture as the penalty, is admitted. But it is denied that it can of 
 itself inflict the punishment. So far as the act in question undertakes to di- 
 vest the title out of Gaines and vest it in the state, it is a legislative infliction 
 of the penalty, it is an assumption to that extent of judicial magistracy with- 
 out affording the accused the benefit of those forms and guards of trial 
 which are his constitutional right whenever he is sought to be punished 
 either in his person or by forfeiture of his property for alleged violations of 
 
 the penal enactions of the state." 
 
 * * * * * * * * * 
 
 " Bills of attainder have generally designated their victims by name : but 
 they may do it also by classes, or by general description fitting a multitude 
 of persons. Either mode is equally liable to moral and constitutional cen- 
 sure. They have generally been applied to punish offences already com- 
 mitted ; but they have been, and may be, applied to the punishment of 
 those thereafter to be committed, or for criminal omissions thereafter in- 
 curring. 
 
 " A British act of Parliament might declare that if certain individuals, or 
 a class of individuals, failed to do a given act by a named day, they should 
 be deemed to be and treated as convicted felons or traitors. Such an act 
 comes precisely within the definition of a bill of attainder, and the English 
 courts would enforce it without indictment or trial by jury ; the prisoner 
 when brought to the bar, being merely asked what he has to allege why 
 execution should not be awarded against him." 
 
 VII. 
 
 The court of appeals of New York in Barker v. The People, (3 
 Cowen, 686,) held the same doctrine which Mr. Justice Miller 
 enunciated in Crandall v. The State of Nevada. (6 Wall., 36.) to 
 wit, that " to share its offices, to engage in administering its 
 functions," is among the rights of the citizens of the United States. 
 The Court of Appeals held that
 
 16 
 
 " Eligibility to office is not declared as a right or principle by any express 
 terms of the constitution ; but it results, as a just deduction, from the ex- 
 press powers and provisions of the system. The basis of the principle is the 
 absolute liberty of electors and the appointing authorities to choose and ap- 
 point any person who is not made ineligible by the constitution. Eligibility 
 to office, therefore, belongs not exclusively or specially to electors enjoying 
 the right of suffrage. It belongs equally to all persons whomsoever not ex- 
 cluded by the constitution. I therefore conceive it to be entirely clear that 
 the legislature cannot establish arbitrary exclusions from office, or any gen- 
 eral regulation requiring qualifications which the constitution has not re- 
 quired. If, for example, it should be enected by law that all physicians, or 
 all persons of a particular religious sect should be ineligible to public trusts ; 
 or that all persons not possessing a certain amount of property should be ex- 
 cluded ; or that a member of the assembly must be a freeholder ; any such 
 regulation would be an infringement of the constitution, and it would be so 
 because, should it prevail, it would be. in effect, an alteration of the consti- 
 tution itself." 
 
 li As a right flowing from the constitution, it cannot be taken away by any 
 law declaring that classes of men, or even a single person not convicted of a 
 public offence, shall be ineligible to public station ; but as a right not ex- 
 pressly secured by the constitution it may be taken from convicted criminals 
 when the legislature in their plenary power over crimes deem such a dep- 
 rivation a necessary punishment. To say this is to say, in substance, that 
 the right in question may be forfeited by crimes when the legislature so 
 direct." (Barker v. The People, 3 Cowen, 686.) 
 
 Alexander Hamilton never rendered a greater service to the 
 cause of human liberty, good government, and equal justice than 
 he did in opposing the proposition to disfranchise all persons 
 who had voluntarily remained in parts of the state of New York 
 in occupation of the British troops. I would commend his example 
 to you as the bravest and noblest act of his great and heroic life. 
 He was just entering upon his career as a professional and public 
 man. It was at a time when a triumphant populace that had suf- 
 fered much in person and in property at the hands of a foreign 
 foe was determined to wreak vengeance on all who had not been 
 their friends. It was as much as a man's life was worth to lift 
 his voice against any proposition in behalf of the despised and 
 hated loyalists. It was enough to deprive any man of the favor of 
 the whole community in which he lived to oppose any measure, no 
 matter how monstrous, which was intended to deprive loyalists of 
 their rights of person or of property. But Hamilton never knew 
 what the feeling of fear was. He never shrank from the perform- 
 ance of a duty because it might be dangerous to his personal
 
 17 
 
 safety, or might endanger his popularity for the time being. If 
 the cause was just he would seek the opportunity to champion it 
 as he did in this instance. His two pamphlets on the proposition 
 to disfranchise those who had simply continued to reside within 
 the lines of the enemy ought to be read by all who admire genius, 
 esteem courage, and venerate bold, true champions of justice and 
 right. 
 
 I will only quote the following passage : 
 
 " Nothing is more common than for a free people in times of heat and vio- 
 lence to gratify momentary passions by letting into the government princi- 
 ples and precedents which afterwards prove fatal to themselves. Of this kind 
 is the doctrine of dittfranchisement, disqualification, and punixhmenU by acts 
 of the legislature. The dangerous consequences of this power are manifest. 
 If the legislature can disfranchise any number of citizens, at pleasure, by 
 general descriptions, it may soon confine all the voters to a small number of 
 partisans, and establish an aristocracy or oligarchy. If it may banish at dis- 
 cretion all those whom particular circumstances render obnoxious without 
 hearing or trial, no man can be safe nor know when he may be the innocent 
 victim of a prevailing faction. The name of liberty applied to such a gov- 
 ernment would be a mockery of common sense." 
 
 VIII. 
 
 The laws enacted by the legislative assembly of Idaho, and the 
 legislation you are asked to recommend, are clearly violative of 
 the sound principles laid down by the great jurists quoted from. 
 Acts of the legislature which disfranchise classes for beliefs and 
 opinions, and prescribe that election officers shall determine 
 whether the proscribed persons are guilty thereof by applying a 
 test oath, are undoubtedly bills of pains and penalties such as are 
 described in the decisions of the Supreme Court of the United 
 States, and of the various state courts, and which are forbidden 
 by the constitution. They are intended to punish what are de- 
 nominated crimes, although mere belief that plural marriage and 
 cohabitation with more than one woman is commanded by the 
 Supreme Being cannot be made a crime. If it could the man who 
 merely entertained the desire to kill his enemy, or wished his 
 adversary ill, could be punished for his thoughts. Burlamaqui, 
 in his Principles of Political Law, lays down this universally ac- 
 cepted maxim of human legislation : " Simple thoughts which do 
 not discover themselves by any external acts prejudicial to society ;
 
 18 
 
 for example, the agreeable idea of a bad action, the desire of com- 
 mitting it, the design of it without proceeding to the execution, 
 et cet., all these are not subject to the severity of human punish- 
 ment, even though it should happen that they are afterwards dis- 
 covered." 
 
 It must be admitted that no state in the Union could prescribe 
 disfranchisement as a punishment for any crime save as a penalty 
 to be imposed after conviction in a court of justice. The decisions 
 of the courts of Pennsylvania, New York, Alabama, Georgia, 
 Kentucky, and various other states, on this poiut, will not be 
 questioned. Even the author of House Bill 1478 admits this to 
 be the law in respect to the crimes of treason, felony, or bribery, 
 because he provides that persons guilty of such offences shall be 
 convicted before they shall be disfranchised. But with strange 
 inconsistency his bill provides that : 
 
 "Any person who is a bigamist or polygamist, or who practises unlawful 
 cohabitation, or who teaches, advises, counsels, or encourages any person or 
 persons to become bigamists or polygamists, or to commit or continue in the 
 commission of the crime of unlawful cohabitation, as now defined by law, 
 or to commit any other crime defined by law, or to enter into what is known as 
 plural or celestial marriage, or who is a member of any order, organization, or 
 association which teaches, advises, counsels, or encourages members or dev- 
 otees, or any other persons, to commit the crime of bigamy, polygamy, or 
 unlawful cohabitation, or any other crime denned by law, either as a rite or 
 ceremony of such order, organization, or association, or otherwise," shall 
 not ' ' be permitted to vote at any election in any of the territories of the 
 United States, or to hold any position or office of honor, trust, or profit within 
 such territory, and more especially shall not be eligible to represent such 
 territory as delegate in the Congress of the United States." 
 
 The persons accused of the heinous crimes of treason and fel- 
 ony and of bribery must first be convicted before they can be 
 disqualified, but those who belong to the Mormon Church are to 
 be disfranchised no matter if they are monogamists, and have in 
 point of fact never taught, advised, counseled, or encouraged 
 " any person or persons to become bigamists, polygamists, or to 
 commit or continue in the commission of the crime of unlawful 
 cohabitation, as now defined by law, or to commit any other crime 
 defined by law, or to enter into what is known as plural or celestial 
 marriage." Mere membership in the Mormon Church is sufficient 
 to disfranchise an otherwise qualified voter. If this does not 
 make a religious test, what does ?
 
 19 
 
 How these provisions are to be enforced House Bill No. 1478 
 does not prescribe. But House Bill No. 6153 with its where- 
 ases and enactments provides a test oath. The wonderful pream- 
 ble of this last bill sets forth that certain things which are not 
 crimes ought to be made crimes, and thereupon enacts that per- 
 sons who do the things which it is admitted are not crimes shall 
 be punished therefor by disfranchisement and disqualification to 
 vote or hold office. The malignity of the draftsmen of these bills 
 is only equalled by their ignorance and stupidity. 
 
 IX. 
 
 But it is claimed that the act of March 22, 1882, disfranchises 
 persons who are bigamists or polygamists, or who cohabit unlaw- 
 fully, and that the Supreme Court of the United States having 
 held this law to be constitutional, therefore like legislation will 
 not be unconstitutional. 
 
 The eighth section of the act of March 22, 1882, which imposes 
 disqualification on certain persons is as follows : 
 
 " SEC. 8. That no polygamist, bigamist, or any person cohabiting with more 
 than one woman, and no woman cohabiting with any of the persons described 
 as aforesaid in this section, in any territory or other place over which the 
 United States have exclusive jurisdiction, shall be entitled to vote at any 
 election held in any such territory or other place, or be eligible for election 
 or appointment to or to be entitled to hold any office or place of public 
 trust, honor or emolument, in, under, or for any such territory or place, or 
 under the United States." 
 
 The great difference between this provision of the act of March 
 22, 1882, and the proposed legislation will be seen at a glance. 
 Disqualification by the first is visited only upon those who are 
 bigamists or polygamists, or who cohabit unlawfully, while the 
 laws enacted by the Idaho legislature, and the legislation you are 
 asked to recommend, disqualifies every member of the Mormon 
 Church. The former inflicts disfranchisement upon those who 
 have offended, and who are offending against laws enacted forbid- 
 ding certain sexual relations, and the latter proposes to disfranchise 
 those who never have offended any law simply because they be- 
 lieve that the certain forbidden relations between the sexes were 
 commanded by God. The one does not undertake to interfere 
 with religious belief, but expressly excepts belief and opinion,
 
 20 
 
 while the other makes membership in the Mormon Church cause 
 for disqualification. There can be no parallel, no comparison, be- 
 tween the two measures. 
 
 It cannot be denied that the eighth section of the act of March 
 22, 1882, is in direct conflict with the fundamental law as ex- 
 pounded by the Supreme Court of the United States in Cum- 
 mings v. The State of Missouri, (4 Wall., 272,) and by the high- 
 est courts of Pennsylvania, New York, Alabama, Georgia, and 
 Kentucky in Huber v. jReily, (3 P. F. Smith, 142 ;) G-otcheus v. 
 Matheson, (58 Barbour, 152 ;) Barker v. The People, (3 Cowen, 
 686;) In the matter of Dorsey, (1 Porter, 293;) Campbell v. The 
 State of Georgia, (11 Ga., 353 ;) Gaines v. Buford, (1 Dana, 510.) 
 
 Judge Black, in speaking of the eighth section of the act of 
 March 22. 1882, says : 
 
 "If any man thinks that disfranchisement is not punishment, or that the 
 judgment of an election officer is equivalent to a legal conviction, let him 
 read the opinion of the Supreme Court of the United States in Cummings' case, 
 (4 Wall.,) delivered by Judge Field, or the clear unanswerable exposition of 
 the subject given by Judge Strong, (Huber v. Reily, 3 Persifer Smith.) If 
 he does not believe on such authority and such reasoning he would not be- 
 lieve though one rose from the dead." 
 
 Judge Field said of the provisions of the constitution of Mis- 
 souri which disfranchised persons who could not take a prescribed 
 test oath : 
 
 " The clauses in question subvert the presumption of innocence and alter 
 the rules of evidence, which heretofore, under the universally recognized 
 principles of common law, have been supposed to be fundamental and un- 
 changeable. They assume that the parties are guilty ; they call upon the 
 parties to establish their innocence ; and they declare that such innocence 
 can be shown only in one way by an inquisition, in the form of an expur- 
 gatory oath into the conscience of the parties. " 
 
 He held also that the constitution of Missouri violated the fifth 
 amendment of the constitution of the United States, and the court 
 coinciding with him declared that : 
 
 " The provision of the federal constitution intended to secure the liberty 
 of the citizen, cannot be evaded by the form in which the power of the state 
 is exerted. If this were not so, if that which cannot be accomplished by 
 means looking directly to the end can be accomplished by indirect means, 
 the inhibition may be evaded at pleasure. No kind of oppression can be 
 named against which the framers of the constitution intended to guard 
 which may not be effected."
 
 21 
 
 Judge Strong, in Huber v. Meily, after referring to the fifth 
 and sixth amendments to the constitution of the United States, 
 held that disfranchisement could only be imposed as a penalty and 
 then only after conviction in a court of competent jurisdiction. 
 He says in regard to election officers being made the tribunal to 
 pass upon the guilt or innocence of the accused : 
 
 " And I cannot persuade myself that a judge of elections, or a board of 
 election officers constituted under state laws, is such a tribunal. I cannot 
 think they have power to try criminal offenders, still less to adjudge the guilt 
 of an alleged violation of the laws of the United States. A trial before such 
 officers is not due process of law for the punishment of offences according to 
 the meaning of that phrase in the constitution. There are, it is true, many 
 things which they may determine, such as the age and residence of a person 
 offering to vote, whether he has paid taxes, and whether, if born an alien, he 
 has a certificate of naturalization. These things pertain to the ascertainment 
 of a political right. But whether he has been guilty of a criminal offence, 
 and has, as a consequence, forfeited his right, is an inquiry of a different 
 character. Neither our constitution or our law has conferred upon the judges 
 of elections any such judicial functions. Thej r are not sworn to try issues 
 in criminal cases. They have no power to compel the attendance of wit- 
 nesses, and their judgment, if rendered, would be binding upon no other 
 tribunal." 
 
 Judge Murray, of New York, in Gotcheus v. Matheson, says : 
 
 " Citizenship of the United States is an important right and the privileges 
 conferred by it are important privileges, dearly prized by the American 
 people. An act that provides for a forfeiture thereof imposes a penalty and 
 comes within the provisions of the constitution in regard to bills of attainder." 
 
 Upon the question of the competency of election officers to pass 
 judgment in such cases the same learned judge says : 
 
 " The inspectors of elections are not in a position to adjudicate these mat- 
 ters. They are not authorized to do so. They can determine who are citizens, 
 but they cannot adjudge and declare as an original adjudication that the 
 plaintiff's citizenship has been forfeited by the commission of an offence. 
 They could receive as evidence such an adjudication made by another court 
 and give effect to its provisions by rejecting the vote, and thus deprive the 
 person of the privilege of citizenship ; but further than this I do not see that 
 they could go.? 
 
 In the matter of Dorsey, the supreme court of Alabama went 
 still further, and held that to prescribe an expurgatory oath as a 
 means of ascertaining guilt even when it is to be applied by a court 
 of law was violative of every sound principle of law. Mr. Justice 
 Goldthwaite, whose fame as a jurist is second to none, in his opin- 
 ion in Dorsey's case, said :
 
 22 
 
 " I have no hesitation in declaring that this act provides a mode of ascer- 
 taining and punishing guilt which is not only unwarranted by the constitu- 
 tion, but is also in direct contravention of several of the most important 
 provisions of the declaration of rights, by which the liberties and privileges 
 of the citizens are guarded." 
 
 The supreme court of Kentucky in Gained v. JBufortl, where 
 the property rights of citizens were alone involved, held that an 
 act of the legislature which provided for forfeiture of land with- 
 out a trial was in the nature of a bill of attainder. 
 
 The court said 
 
 ' ' That the term should be received in the large sense thus given to it is 
 consonant with the true republican character of our institutions. A con- 
 demnatory act of the legislature inflicting upon an individual, or class of in- 
 dividuals, pains and penalties, is as much within the reason of the prohibi- 
 tion as if it inflicted capital punishment. They are both equally hostile to 
 the principles of civil liberty and the spirit of our written constitutions. 
 They are equally engines of tyranny and oppression, and equally unsuited 
 to the government of a free people." 
 
 The New York court of appeals in Barker v. The People, in 
 speaking of the right of the citizen to be eligible to hold office, 
 says : 
 
 "' As a right flowing from the constitution, it cannot be taken away by any 
 law declaring that a class of men, or even a single person not, convicted of a 
 public offence, shall be ineligible to public stations ; but as a right not ex- 
 pressly secured by the constitution, it may be taken from convicted criminals 
 when the legislature, in their plenary power over crimes, deem such a 
 deprivation a necessary punishment." 
 
 X. 
 
 The Supreme Court of the United States recognized the hope- 
 lessness of answering the logic of the deductions in the cases quoted. 
 
 It was aware that, if it admitted that the disfranchisement pre- 
 scribed in the eighth section of the act of March 22, 1882, was im- 
 posed as a punishment, it would be open to two objections, either 
 one of which would be fatal. Accordingly, ignoring the point that 
 it was in effect a bill of pains and penalties directed against a class, 
 the majority of the court merely held that the act " is not open to 
 the objection that it is an ex post facto law." It is but necessary 
 to read the disingenuous language of the opinion of the court 
 on this point, and to observe its illogical reasoning to see how 
 it was straining at a gnat while swallowing a camel.
 
 23 
 
 Keferring to the eighth section the court says : 
 
 " It does not seek in this section, and by the penalty of disfranchisement, 
 to operate as a punishment upon any offence at all. The crime of bigamy or 
 polygamy consists in entering into a bigamous or polygamous marriage, and 
 is complete when the relation begins. That of actual cohabitation with more 
 than one woman is defined, and the punishment prescribed in the third sec- 
 tion. The disfranchisement operates upon the existing state, and condition of 
 the person, and not upon a past offence. It is, therefore, not retrospective. He 
 alone is deprived of his vote who, when he offers to register, is then actually 
 cohabiting with more than one woman. Disfranchisement is not prescribed 
 as a penalty for being guilty of the crime and offence of bigamy or polyg- 
 amy, for, as has been said, that offence consists in the fact of unlawful mar- 
 riage, and a prosecution against the offender is barred by the lapse of three 
 years by section 1044 of the Revised Statutes. Continuing to live in that state 
 afterwards is not an offence, although cohabitation with more than one woman 
 is. But as one may be living in a bigamous or polygamous state without 
 cohabiting with more than one woman, he is in that sense a bigamist or a 
 polygamist, and yet guilty of no criminal offence. So that, in respect to 
 those disqualifications of a voter under the act of March 22, 1882, the objec- 
 tion is not well taken that represents the inquiry into the fact by the officers of 
 registration as an unlawful mode of prosecution for crime. In respect to the 
 fact of actual cohabitation with more than one woman, the objection is 
 equally groundless, for the inquiry into the facts so far as the registration of- 
 ficers are authorized to make it, or the judges of election, on challenge of the 
 right of the voter if registered, are required to determine it is not, in view of 
 its character as a crime, nor for the purpose of punishment, but for the sole 
 purpose of determining, as in the case of every other condition attached to 
 the right of suffrage, the qualification of one who alleges his right to vote. 
 It is precisely similar to an inquiry into the fact of nativity, of age, or of any 
 other status made necessary by law as a condition of the elective franchise. 
 It would be quite competent for the sovereign power to declare that no one 
 but a married person shall be entitled to vote ; and in that event the election 
 officers would be authorized to determine for that occasion, in case of ques- 
 tion in any instance, upon the fact of marriage as a continuing status. There 
 is no greater objection, in point of law, to a similar inquiry for the like pur- 
 pose into the fact of a subsisting and continuing bigamous or polygamous re- 
 lation, when it is made, as by the statute under consideration, a disqualifica- 
 tion to vote." (Murphy et al. v. Ramsey et al., 114 U. S., 15.) 
 
 Observe the inconsistency of the court as well as the inexact- 
 ness of the language employed to convey its meaning. It says 
 that the law " does not seek in this section, and by the penalty of 
 disfranchisement, to operate as a punishment upon any offence at 
 all." What the writer was trying to say was that " disfranchise- 
 " in its imposition in this instance was not as a "punish-
 
 24 
 
 ment " for crime, but the habit of using legal phraseology was so 
 strong upon him that he could not escape self-condemnation out 
 of his own mouth. "Penalty," according to Webster, means 
 
 "Penal retribution; punishment for crime or offence ; the suffering in 
 person or property which is annexed by law or judicial decision to the com- 
 mission of a crime, offence, or trespass." 
 
 Therefore " the penalty of disfranchisement " is a punish- 
 ment, and to argue that it can be inflicted and not ' operate as a 
 punishment upon any offence at all " is self-stultifying. But let 
 us analyze the whole paragraph quoted above. The court ad- 
 mits that disfranchisement cannot be inflicted as a penalty by the 
 legislature without a trial. Its attempt to prove that a bigamist 
 is not disfranchised for that offence, or for unlawful cohabitation, 
 is disingenuous. Of course " the crime of bigamy or polygamy " 
 is committed by " entering into a bigamous or polygamous mar- 
 riage," but " disfranchisement," although it " operates upon the 
 existing state and condition of the person," is none the less " a 
 punishment " for that offence even if prosecution therefor " is 
 barred by section 1044 of the revised statutes." To claim that 
 " disfranchisement is not prescribed as a penalty for being guilty 
 of the crime and offence of bigamy or polygamy," but is imposed 
 as a punishment for continuing in a bigamous or polygamous 
 state, which is made an offence, is to describe exactly " a penal 
 retribution," which the constitution of the United States de- 
 clares shall not be inflicted " without due process of law." 
 
 To admit that while "one may be living in a bigamous or polyg- 
 amous state without cohabitation with more than one woman, he 
 is in that sense a bigamist or a polygamist, and yet guilty of no 
 criminal offence," and still insist that ''the objection is not well 
 taken that represents the inquiry into the fact by the officers of 
 registration as an unlawful mode of prosecution for crime," is 
 simply begging the question. What is the purpose of the in- 
 quiry ? To ascertain if the person is living in a bigamous or 
 polygamous state without being guilty of a criminal offence ? No ! 
 The object is to find out whether he is guilty of an offence which 
 subjects him to the penalty of disfranchisement. To do this what 
 is the mode ? An expurgatory oath ? Yes ! Who are to do this ? 
 The officers of registration, who, in the language of the New 
 York court of appeals, " are not authorized to do so. They can
 
 25 
 
 determine who are citizens, but they cannot adjudge and declare, 
 as an original adjudication, that the plaintiffs citizenship has been 
 forfeited by the commission of an offence." 
 
 Unlawful cohabitation is an offence punishable by fine and im- 
 prisonment, nevertheless the Supreme Court says that " the in- 
 quiry into the fact, so far as the registration officers are author- 
 ized to make it, or the judges of election, on challenge of the 
 right of the voter, if registered, are required to determine it, is 
 not in view of its character as a crime, nor for the purpose of 
 punishment, but for the sole pui'pose of determining, as in the 
 case of every other condition attached to the right of suffrage, 
 the qualification of one who alleges his right to vote." But how 
 far " in the case of every other condition attached to the right of 
 suffrage " are the registration officers, or judges of elections, com- 
 petent to inquire? "They may determine," says the Supreme 
 Court of Pennsylvania, " many things, such as the age and resi- 
 dence of a person offering to vote, whether he has paid taxes, and 
 whether, if born an alien, he has a certificate of naturalization, * 
 * * but whether he has been guilty of a criminal offence and has, 
 as a consequence, forfeited his right, is an inquiry of a different 
 character." The utmost extent to which they can go, says the 
 Supreme Court of New York, is to receive as evidence the ajudi- 
 cation by a court of competent jurisdiction " that the plaintiffs 
 citizenship has been forfeited by the commission of an offence." 
 
 And the reasons for this are threefold. First, because both in 
 the United States and in England it has invariably been held that 
 an election officer is "neither a judge nor anything like a judge." 
 Second, because " citizenship .of the United States is an important 
 right, and the privileges conferred by it are important privileges, 
 dearly prized by the American people. An act that provides for a 
 forfeiture thereof imposes a penalty, and comes within the provi- 
 sions of the constitution in regard to bills of attainder." Third, 
 because " if this were not so, if that which cannot be accomplished 
 by means looking directly to the end can be accomplished by in- 
 direct means, the inhibition may be evaded at pleasure. No kind 
 of oppression cau be named against which the framers of the con- 
 stitution intended to guard which may not be effected." 
 
 Having wabbled into this untenable positio'n it is not surprising 
 that the court should assert that " it would be quite competent
 
 26 
 
 for the sovereign power to declare that no one but a married per- 
 son shall be entitled to vote." It might with equal accuracy have 
 said that the sovereign power could prescribe the height, in feet 
 and inches, of the persons entitled to vote, as well as the color 
 and the cut of their hair. It would be well for the judges of 
 the Supreme Court to revert occasionally to the enunciations of 
 the ancient worthies, whose seats they occupy, upon the subject of 
 the limit of legislative power. 
 
 XI. 
 
 But whether you are inclined to hold fast to the great funda- 
 mental principles of free republican institutions with Hamilton, 
 Marshall, Washington, Chase, and all the great jurists and states- 
 men of the past, or go astray with those who seem determined to 
 make the law fit certain cases on the theory that the end justifies 
 the means, one thing is certain, you cannot disqualify persons 
 because they think or believe in a way that you may not approve. 
 You' cannot disfranchise those who are members of a particular 
 church organization because part of the religious faith of that body 
 ecclesiastical is not according to your notions. The plain letter 
 of the constitution stands in the way and you cannot evade it by 
 indirect means. 
 
 Upon the right of thinking and believing let me commend a 
 case in 41 Georgia, 1 83, Maxey v. Sell. Bell, a universalist, was 
 guardian of certain minor children. Maxey moved to have him 
 set aside because he was an infidel. The opinion of the court is 
 brief : 
 
 " It is a little extraordinary," it says," that the spirit of intolerance should 
 need such precise restraints to keep it within bounds. It has for years been 
 the settled law of this state that men shall not be molested for their religious 
 opinions. 
 
 " In Georgia a man may think as he pleases upon any subject, religious, 
 philosophical, or political, and is not for that under any civil or political 
 disability." 
 
 It is respectfully submitted that it is the bounden duty of this 
 committee not only to report adversely upon House Bills 1478 
 and 6153, but to recommend that the legislation enacted by the 
 legislative assembly of Idaho should be disapproved by Congress.
 
 27 
 
 The condition of the people of Bear Lake county, Idaho, must 
 appeal to your consciences. Their petition sets forth the great 
 injustice which has been done them. The petitioners have in no- 
 wise offended, and as American citizens they are entitled to the 
 exercise of all the rights and privileges of citizenship. 
 
 A. M. GIBSON, 
 Attorney for the Mormon People.
 
 UNIVERSITY OF CALIFORNIA LIBRARY 
 
 Los Angeles 
 This book is DUE on the last date stamped below 
 
 1968 
 
 Form L9 Series 444