5 Nev. 369 | Nev. | 1870
By the Court,
The Constitution of this State (Art. II, Sec. 1) provides that: “ Every white male citizen of the United States, (not laboring under the disabilities named in this Constitution) of the age of twenty-one years and upwards, who shall have actually, and not constructively, resided in the State six months and in the district or county thirty days next preceding any election, shall be entitled to vote for all officers that now are of may hereafter be elected by the people, and upon all questions submitted to the electors at such election: provided, that no person who has been, or may be convicted of treason or felony in any State or Territory of the United States, unless restored to civil rights, and no person who, after arriving at the age of eighteen years, shall have voluntarily borne arms against the United States, or held civil or military office under the so-called Confederate States or either of them, unless an amnesty be granted to such by the Federal Q-overnment; and no idiot or insane person, shall be entitled to the privilege of an elector.”
It will be observed from this language that there are three classes of persons who, although they may have borne arms against the government, are still entitled to all the privileges of an elector. These are: First, all those who so bore arms before they were eighteen years of age, and not afterwards; second, all persons who did so by compulsion; and, third, all those to whom an amnesty is granted by the Federal Government. The section above quoted. may therefore be construed as if it read in this manner: Every
The form of the law by which an individual is deprived of a constitutional right is immaterial. The test of its constitutionality is, whether it operates to deprive any person of a right guaranteed or given to him by the Constitution. If it does, it is a nullity— whatever may be its form. Surely, a law which deprives a person of a right by requiring him to take an oath which he cannot take is no less objectionable than one depriving him of such right in
But it is ai’gued, no amnesty has been granted — and hence, no person, who by the Constitution is entitled to the elective franchise, is deprived of it by means of the oath required by the law. This, however, appears to us to be an error. On the fourth day of July, 1868, a proclamation, the conclusion of which is in this language, was issued by the President:
“Now, therefore, be it known that I, Andrew Johnson, President of the United States, do, by virtue of the Constitution, and in the name of the people of the United States, hereby proclaim and declare, unconditionally and without reservation, to all and every person who, directly or indirectly, participated in the late insurrection or rebellion — excepting such person or persons as may be under presentment or indictment in any Court of the United States having competent jurisdiction, upon a charge of treason, or other felony— a full pardon and amnesty for the offense of treason against the United States, or of adhering to their enemies during the late civil war — with restoration of all rights of property, except as to slaves, and except also, as to any property of which any person may have been legally divested under the laws of the United States.”
It is, however, claimed that the President had not the power to grant amnesty as was done by this proclamation; that amnesty can only be granted by an Act of Congress. To sustain this position it is argued that the constitutional power to pardon, which is given to the Chief Magistrate, does not include the right to proclaim amnesty. But the word “ pardon ” is generic, and includes every character of pardon. Amnesty is a general pardon granted to a class of persons by law or proclamation. The Act in such case is as properly a pardon as if simply granted to an individual, by deed. Indeed, it seems to be generally conceded, in the United States, that the word “pardon” includes amnesty. Thus, Mr. Webster defines the latter word to be, “ an act of oblivion; a general pardon of the offenses of subjects against the government, or the proclamation of such pardon.” So, Worcester defines it as “ a general pardon, granted to those guilty of some crime or offense.”
Amnesty, being a kind of pardon, must be held to be included in the constitutional power conferred upon the President to grant pardons — hence, this proclamation must be accepted as a valid and operative grant of amnesty to all those who may be included within its language.
Here, then, it appears that the relator, who has shown himself possessed of ¿11 the qualifications required by the Constitution to entitle him to the elective franchise, is deprived of that right by means of the oath required by the Registry law. This being the case, the oath is unconstitutional, and the relator cannot be compelled to take it.
No part of the oath, it is true, appears to be in conflict with the Constitution, except that which requires the citizen to swear that ne has not, since arriving at the age of eighteen years, voluntarily
The mandamus to the defendant, commanding him to register the name of the relator, was properly issued by the Judge below, and his order must be affirmed.