Page:Rison v. Farr.pdf/16

176

Rh

From these and many other authorities that might be cited, it is plain that no one can be deprived of his rights or privileges, unless the matter be adjudged against him by due course of common law.

Then it is clear that although treason is the highest crime known to the laws of this state, the mere commission of that offence will not in itself work a forfeiture of the rights or privileges of the offender, but before he can be deprived of all or either of them, he must be convicted by due process of law. From this view of the case it is evident that, that part of the 6th section of the act of the legislature of the state of Arkansas, entitled "an act to provide for the manner of holding elections," approved May 31st, 1861, whieh requires the voter before depositing his vote to swear that he has not voluntarily borne arms against the United States or this state, nor aided the so-called confederate authorities since the 18th day of April, 1864, is repugnant to, and in open conflict with the constitution, and in every point of view is an entrenchment upon the rights secured by the fundamental law of this state, and is therefore absolutely null and void. The constitution having fixed the qualification of an elector in this state, those possessing the qualifications required, can no more be deprived of the right to vote by legislative enactment, than they can be deprived of the right to trial by jury, or the right to worship God according to the dictates of their own consciences.

Part of the law under which the plaintiffs in error justify, being void for unconstitutionality, and their plea being entire, and bad for part is bad for the whole, (Chit. Plead. vol. 1, p. 146,) and can afford them no justification or excuse for refusing to accept the vote of the defendant in error, at said election.

Finding no error in the proceedings or judgment of the court below; the judgment of that court must be and is hereby affirmed.