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were bound to conform to the provisions of the act of the legislature, and are not responsible in damages to the plaintiff—the act of the legislature being presumed to be valid until pronounced unconstitutional by the proper tribunal.

Argument for Defendant
C, W & M and E & W, for defendant.

The constitution, by article III, section 2, having fixed the qualifications of electors, it is not within the power of the legislature to add to or diminish those qualifications. When the requirements of the constitution are passed over, there is no limit to the power of the legislature to prescribe additional qualifications.

That the framers of the present constitution, which was adopted in the midst of the rebellion, did not intend to invest the legislature with the power of adding to the qualifications of electors the provisions of the test oath pleaded in defence, is clearly apparent from sec. 12, ''art. IV, requiring the exclusion from the right of suffrage, etc.'', of persons guilty of certain crimes. But before the vote of any one can be legally rejected because of the commission of crime, he must have been duly convicted according to the forms of law. ''Amend. Con. U. S., art. V; 10th and 14th secs., bill of rights; sec. 8, art. VII, Cons.'' A man can be deprived, criminally, of his property, liberty or franchises only by indictment, etc., and trial by jury. It cannot be done by mere act of the legislature, or by test oaths. 1 Kent's Com., 12; 2 ib., 13; ''Smith on Cons. & Stat. Law, 722, Taylor vs. Porter, 4 Hill R., 145; Coke's Inst., 45-50; 10 Yerg., 59; 3 Story on Cons.'', 264-661.

The test oath for the refusal to take which the defendant was deprived, by the judges of election of his right to vote, contains not only a provision that he will support the constitution of the United States, to which there is no objection; but also, that he has not committed acts which would constitute a crime against the United States; for which he can only be held responsible by criminal prosecution in the courts of the United States; and also