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within the general scope of their constitutional power, the court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice; the ideas of natural justice are regulated by no fixed standard; the ablest and purest men have differed on the subject; and all that the court could properly say, in such an event, would be, that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice." There is no fixed and certain standard of reference by which the expediency or justice of a measure can be ascertained, and in order to form a correct judgment, it is necessary to have a knowledge and acquaintance with all the facts and circumstances which originated it or led to its adoption.
The decision of the supreme court of the United States in the Cummings case, proceeds on the idea, that the right to pursue a calling or profession, is a natural and inalienable one, and that a law precluding a person from practising his calling or profession, on account of past conduct, is inflicting a penalty, and therefore void. There are certain rights which inhere in and attach to the person, and of which he cannot be deprived, except by forfeiture for crime, whereof he must be first tried and convicted according to due process of law; these are termed natural or absolute rights. Blackstone says, "by the absolute rights of individuals, we mean, those which are so in their primary and strictest sense; which would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society, or in it." These rights may be arranged under the following heads: 1. The right of personal security: 2. The right of personal liberty: and 3. The right to acquire and enjoy property: to these the distinguished commentator on American law has added a fourth head, which found no place under the English system, namely, the free exercise and enjoyment of religious profession and worship.
When the sturdy barons wrested magna charta from a despotic king, they put these words into that great instrument, "no freeman shall be taken (arrested) or imprisoned, or be disseised of his freehold or liberties, or free customs, or be outlawed or exiled, or any otherwise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his peers, or the law of the land: we will sell to no man, we will deny to no man, we will delay to no man, either justice or right." The words "by the law of the land," as used in the great charter, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men; and Story remarks that the better and larger definition of "due process" is, that it means law in its regular course of administration, through courts of justice. Lord Coke, in commenting upon the above passage in magna charta, says, that it enunciated no new principle, but was declaratory of the common law. The illustrious author of the Declaration of Independence embodies the same inestimable axioms, when he declares, that "all men are endowed by their Creator with certain inalienable rights, among which are life, liberty and the pursuit of happiness;" essentially the same principles are inserted in the amendments to the constitution of the United States, and in the bills of rights of the respective states.
The right then, to life, liberty and private property, is natural, absolute and vested, and belongs to the individual, as well in a state unconnected with society, as in the most carefully-guarded and well-arranged system of government; he cannot be deprived of life, but by due process of law; he can be restrained of his liberty only by the same means; and his right to acquire and enjoy property, and reap the fruits and earnings of his own industry, should be guarantied and protected. A man may be said to have a special property in his profession or calling, by which means he makes his support; and he can be deprived of it only in the usual manner, according to the common forms of
law. In a state of nature, if he had never entered into society, he would, undoubtedly, have had the right to select his avocation, whereon to depend for maintenance, and he cannot be said to have surrendered it, by entering into the social compact, except so far as may be necessary for the general good, in manner to be regulated by law.
But is the right to vote, or to exercise the privilege of the elective franchise, a right either natural, absolute or vested? It is certain, that in a state of nature, disconnected with government, no person has or can enjoy it; whilst his rights of breathing, free locomotion, and the acquisition and enjoyment of property, are perfect and complete: and here it is worthy of observation, that Judge Field, in the Cummings case, while enumerating several of the classes to which the oath extends, all of which, he considers, render it obnoxious to the constitutional inhibition, carefully and guardedly refrains from including the right to vote in the category. That the privilege of participating in the elective franchise, in this free and enlightened country, is an important and interesting one, is most true; but we are not aware that it has ever been held or adjudged to be a vested interest in any individual. Judge Washington, in Corfield v. Coryell, 4 Wash. C. C. 371, speaks of it as one of the fundamental franchises, under our form of government, to be regulated and established by the laws or constitution of the state in which it is to be exercised.
The leading case on the subject is Ashby v. White, 2 Ld. Raym. 938, where the plaintiff averred that he was a "burgess" and an inhabitant of the borough of Aylesbury, where the election was held; that being such burgess and inhabitant, he had the right to vote; and that the defendants, who were constables of said borough, and officiating as judges of the election, were then and there requested to receive and allow his vote; but that they absolutely refused to receive and allow the same; whereupon he brought his suit, and claimed damages in the sum
of £200. Upon a plea of not guilty, there was a verdict for the plaintiff; and judgment was afterwards arrested, in the king's bench; Powell, Powis and Gould, JJ., held, that the action could not be maintained; but Holt, C. J., dissented, and gave an opinion for the plaintiff; a writ of error was prosecuted in the House of Lords, where the judgment of the king's bench was reversed, and the views of Holt adopted and sustained. But the chief justice did not proceed upon the idea of a natural and inherent right in the citizen to vote; for he expressly says, that before the statute of 8 Hen. VI., ch. 7, any man that had a freehold, though never so small, had a right of voting; but by that statute the right of election was confined to such persons as had lands or tenements to the yearly value of 40s., because, as the statute said, of the tumults and disorders which happened at elections, by the excessive and outrageous number of electors. But he states that the right of election, in that case, was a direct grant, incident to and inseparable from the freehold. It was the case of a burgess, and the plaintiff claimed the right to vote by reason of his burgessship; and Littleton, in his chapter of tenure in burgage (lib. 2, ch. 10, sect. 162, 108 b), was quoted, where he says, "tenure in burgage is, where an ancient borough is, of which the king is lord, of whom the tenants hold by certain rent, and it is but a tenure in socage;" and also sect. 164, where he says, "and it is to wit, that the ancient towns called boroughs be the most ancient towns that be in England, and are called boroughs, because of them come the burgesses to parliament." So that the tenure of burgage was from the antiquity, and their tenure in socage was the reason of their estate, and the right of election was annexed to their estate. There is no such annexation or grant of franchise as to elections in this country.
It will not now be necessary to inquire by what charter or authority, and upon what terms, the citizen is invested with the ballot in this state. As before remarked, outside
of society, and disconnected with government, no person either has or can exercise the elective franchise, as a natural right, and he only receives it, upon entering the social compact, subject to such qualifications as may be prescribed. Prior to the adoption of the federal constitution, the respective states possessed unlimited and unrestricted sovereignty, and retained the same ever afterwards, except so far as they granted certain powers to the general government, or prohibited themselves from doing certain acts; every state reserved to itself the exclusive right of regulating its own internal government and police.
Prior to the year 1820, Missouri was a mere territory, not a state clothed with the power of self-government; but, in pursuance of the authority of the act of congress of 6th March, passed in that year, the inhabitants of the territory of Missouri elected delegates to a convention to form a constitution for the state. The only limitation imposed by congress was, that the constitution, when formed, should "be republican, and not inconsistent with the constitution of the United States;" subject to these conditions, there was no limitation or restraint upon their action as to the organism and principles of the state they were about to form. The people, through their representatives assembled in convention, proceeded to form the constitution, which was to organize them into a state; and in the declaration of rights, embodied in that constitution, as general, great and essential principles of liberty and free government, we find the following: 1. "That all political power is vested in and derived from the people:" 2. "That the people of this state have the inherent, sole and exclusive right of regulating the internal government and police thereof, and of altering and abolishing their constitution and form of government, whenever it may be necessary to their safety and happiness.' With these provisions in her constitution, Missouri was admitted into the union, and recognised as one of the sisters in the republic, on the same terms, and with the same powers, as the original states; her admission was a