doing of that which can not legally be done, is equivalent to an absolute denial of the right under any condition. The effect, and not the language of the law, in such case, must determine its constitutionality. It would not be doubted for a moment that a law expressly denying the elective franchise to any person upon whom the Constitution confers it would be unconstitutional. Why, then, is a law less objectionable which, although not expressly and directly, yet no less certainly denies the right, etc.—(Davies vs. McKeeby, 5 Nevada Rep. 7,371.)
We quote next from a Tennessee case:
The elective franchise is a right which the law protects and enforces as jealously as it does property in chattels or lands. It matters not by what name it is designated—the right to vote, the elective franchise, or the privilege of the elective franchise—the person who, under the Constitution and laws of the State is entitled to it, has a property in it, which the law maintains and vindicates as vigorously as it does any right of any kind which men may have and enjoy.
The rules of law which guard against deprivation or injury, the rights of persons in corporeal properties, are alike and equally applicable to the elective franchise, and alike and equally guard persons invested with it against deprivation of or injury to it. Persons invested with it can not be deprived of it otherwise than by "due process of law." See
The State vs. Staten, 6 Caldwell's Rep., p. 243. See also Rison vs. Farr, 25 Ark. Rep., p. 173; Winehamer vs. People, 13 N. Y., 378; State vs. Symonds, 57 Maine, 150, 511; Huber vs. Riley, 53 Penn., 112; Cooley's Constitutional Limitations.
We conclude this list of references with Mr. Webster's celebrated definition in the Dartmouth College case (4 Wheaton, 581):
By the law of the land is most clearly intended the general law; a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeiture, in all possible forms, would be the law of the land.
Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the Legislature. There would be no general permanent law for courts to administer, or for men to live under. The administration of justice would be an empty form—an idle ceremony. Judges would sit to execute legislative judgments and decrees; not to declare the law, or to administer the justice of the country.
That the elective franchise is a privilege of citizenship, we have the authority of Judge Washington, for he says:
What are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What those fundamental principles are, it would perhaps be more tedious than difficult to enumerate.
They may, however, be all comprehended under the following general heads: Protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the Government may justly prescribe for the general good of the whole; the right of a citizen of one State to pass through, or to reside in any other State for purposes of trade, agriculture, professional pursuits, or otherwise; to
