The first section of the act of the fifth of November 1816, to suppress duelling, prescribes, that “ the person convicted shall be incapable of holding or “ being elected to any post of profit, trust or emolument, civil or military, under this state :” and the objection now made, is, that this punishment is inconsistent with the constitution.
The constitution of the United States provides, that cruel and unusual punishments shall not be inflicted. This provision is one of the amendments to that constitution, which were adopted soon alter the constitution itself had been ratified. Like other amendments adopted at the same time, it is a restriction upon the government of the United States, intended to deprive that government of a power, which it had or might claim, under the original constitution. In the language which accompanied these amendments, when they were proposed and adopted; “ these farther declaratory and “ restrictive clauses were added to the constitution, in or- “ der to prevent misconstruction, or abuse of its powers.” The solicitude of the people and of the states, then was, not to limit the power of the states, but to limit the power of the union, and by new provisions to give security to rights, which were supposed to be in danger fro,m the new and untried system of national government. The danger apprehended, was by the parts from the new government of the whole; and not by any state from its own government. T^ach state was then at liberty, as it now is, to provide by its *702own constitution, that cruel and unusual punishments shall not be inflicted by its own government. Accordingly, several of the states, in their constitutions established since the adoption of this amendment to the constitution of the union, have provided, that cruel and unusual punishments shall not be inflicted. This provision is found in the constitutions of Ohio, Tennessee, Indiana, and Maine. The constitutions of Delaware, Kentucky, Mississippi, and Alabama, also established since the adoption of the amendment in question, provide, that cruel punishments shall not be inflicted. Other state constitutions are silent upon the subject of punishments, either cruel or unusual. It is pnost evident, that the states which have imposed these restraints upon their own governments, conceived, that they were at liberty to do so, or not; ap.d that in their conception, the eonstitution of the union, contained no such restraints upon state, governments, in the punishment of Primes against states. To, consider this amendment as operating upon the several states, would be io render nugatory and null, the like provision in the constitutions of very many of the states; and, at the. same time, to force upon all the states which have not adopted such a provision, a rule which they may think inexpe-. dient, and which they at least, have thought unnecessary, in. their own internal economy. This provision concerning punishments, is therefore, as a part of the constitution of' the union, a restriction upon the government of the union ; and as a part of any state constitution, it is a restriction upon the government of the state 'which has established it. The constitution of this state, imposes no such restriction upon punishments. Without inquiring whether disqualification to. hold office, is a punishment either cruel or unusual, I consid-. er this provision of the national constitution, inapplicable to, offences against a state.
*701The provision m theconst tution of the United Stales, that cruel and unusual punishments shall not be inflicted, is a restriction upon the government of the United States only; and not upon the government of any state.
*702The eonstiTLS^aoes not regulate the punishment of crimes against ,astate’
The constitution of the United States provides, that no state shall pass any bill of attainder, or ex post facto law ; but that constitution does not regulate- the punishment of . crimes against a. state. ■
In considering the question before us, it seems to, mg to. be of little importance, whether we examine it, in, reference *703to the late constitution of this state, or by that which now exists. The principles and provisions of both instruments, so far as they concern this question, are nearly the same : but as parts of the existing constitution were in force, when this Conviction took place, and as it has been urged at the bar, that this judgment is more clearly repugnant to the existing constitution, than it may have been to the preceding instrument, I shall inquire, whether this judgment is, or is not, repugnant to the constitution now in force.
Eligibility to public trusts, is claimed as a constitutional right, which can not be abridged or impaired. The constitution establishes and defines the right of suffrage ; and gives to the electors, and to various authorities, the power to confer public trusts. It declares, that ministers of religion, shall be ineligible to any office ; it prescribes, ih respect to certain offices, particular circumstances, without which, a person is not eligible td those stations; and it provides, that persons holding certain offices, shall hold no other public trust. Excepting particular exclusions thus established, the electors and the appointing authorities are, by the constitution, wholly free to confer public stations upon any person, according to their pleasure. The constitution giving the right of election and the right of appointment ; these rights consisting essentially, in the freedom of choice ; and the constitution also declaring, that certain persons are not eligible to office ; it follows from these powers and provisions, that all other persons are eligible. Eligibility to office, is not declared as a right or principle, by any express terms of the constitution ; but it results, as a just deduction, from the express powers and provisions of the system. The basis of the principle, is the absolute liberty of the electors and the appointing authorities, to choose and to appoint, any person, who is not made ineligible by the constitution. Eligibility to office, therefore, belongs, not exclusively or specially to electors, enjoying the right of suffrage. It belongs equally, to all persons whomsoever, not excluded by the constitution. I therefore conceive it to be entirely clear, that the legislature can not establish arbitrary exclusions from office, or any general regulation requiring *704qualifications, which the constitution has not required. If, for example, it should be enacted by law, that all physicians, or all persons of a particular religious sect, should be inelig'ble to pubiid trusts ; or that all persons not possessing a certain amount of property, should be excluded ; or that a member of the assembly must be a freeholder; any such regulation, would be an infringement of the constitution ^ and it would be so, because, should it prevail, it would be in effect, an alteration of the constitution itself. But the question before us, is not at all,- of this character. The legislature have made ao such general regulation. They have prescribed, that incapacity to hold public trusts, shall be the punishment of a particular crime ; and the question here is, whether they have power to prescribe such an incapacity - as a punishment, or not.
*703Mátele gisiature canarbitrarles elusions from general regutions which Station.6 Cha¡ not required»
*704The power of the state legislature, in the pumshment of special grant thor hy^bu t “a part of the lesovereignpowto°f maintain social order, Ufe, t0liberty and all the rights of both, when the sac«ficéis neces-
The power of the legislature in the punishment of crimes,- . r ° . . , is not a special grant, or a limited authority to do any part¡cu¡ar thing, or to act in any particular manner. It is a part of “ the legislative power of this state,” mentioned in the first sentence of the constitution. It is the sovereign power 0f a state, to maintain social order, by laws for the due punishment of crimes. It is a power to take life, and liberty, anc^ r*ghf3 of both, when the sacrifice is necessary to the peace, order, and safety of the community. This general authority is vested in the legislature, and as it is one of the most ample of their powers, its due exercise is among „ . . r . . . ° the highest of their duties. When an offender is imprison* e(^ he is deprived of the exercise of most of the rights of a citizen ; and when he suffers death, all his rights are extin* guished. The legislature have power to prescribe imprisonment or death, as the punishment of any offence. The rights óf a citizen, are thus subject to the power of the state, in the punishment of crimes ; and the restrictions of the constitution upon this, as upon all the general powers of the government, are, that no citizen shall be deprived of his rights, unless by the law of the land or the judgment of his peers, and that no person shall be deprived of life, liberty or property, without due process of law.
*705Thfe constitution has, in one case, limited punishment. When an officer of the state, is convicted upon impeachment, the judgment can not extend farther than removal from office and disqualification to hold office. This provision stands here, a restriction, not an authority. As the punishment is not to extend farther, than removal and disqualification, the sense of the terms, and the known course of proceedings in the country from which we derive the history and practice of impeachments, both show, that this provision is a merb limitation of a greater power, a power to inflict other punishments, as well as removal and disqualification. Impeachments of public officers, a peculiar species of accusation, made and tried in a peculiar manner, are to extend no farther in their effect, than to discharge an officer from his trust, and to render him incapable of holding office ; but if the cause, for which the officer is thus punished, is a public offence, he may be also, indicted, tried, and punished, according to law; the constitution leaving the definition of the offence, and its particular punishment, in this case, as in. all others, to the gene, al power of the legislature. This part of the constitution concerning judgment on impeachments, is therefore, a limitation of the power of the court for the trial of impeachments; and not a restriction upon the general power of the legislature over crimes.
The provision in the state' constitution, that the judgment upon impeachment shall not extend farther than a removal from office, and disqualification to hold office, is a restriction, not tin authority^
The power of the state over crimes, is thus committed to the legislature, without a definition of any crime, without a description of any punishment to be adopted, or to be rejected, and without any direction to the legislature concerning punishments. It is then, a power to produce the end by adequate means ; a power to establish á criminal code, with competent sanctions ; a power to define crimes and prescribe punishments by laws, in the discretion of the legislature.
Tho powe¿ of the state legislature, over crimes, is e power to produce the end by adequate means.
But tii ere are numerous regulations in the constitution, which operate as rest’ictions upon this power.
*706Many, rights are in i ended to be fundamenlabie^ iaV10"
Examples,
*705But though no crime is defined in the constitution, and no species of punishment is specially forbidden, to the legislature, yet there are numerous regulations of the constitution which must operate as restrictions upon this general power. The whole constitution must be supported ; and all its powers and rules must be reconciled into concord. *706A law which should declare it a crime, to exercise any funjamentaj rjght of the constitution, as the right of suffrage, or the free exercise of religious worship, would infringe an exPress rule of the system ; and would therefore, not be within the general power over crimes. Particular punishments weu]¿ als0 encroach upon rules and rights established by the constitution. Though the legislature have an undoubted power to prescribe capital punishment, and other punishments which produce a disability to enjoy constitutional rights, yet a mere deprivation of rights, would, even as a punishment, be, in many cases, repugnant to rules and rights expressly established. Many rights are plainly ex-b , .. 3 , ,, , - , 3 , . , . • . ., pressed, and intended to be fundamental and inviolable, in ah circumstances. A law enacting that a criminal should, as a punishment for his offence, forfeit the right of trial by jury, would contravene the constitution ; and a deprivation of this right, could not be allowed, in the form of a punishment. Any other right thus secured, as universal and inviolable, must equally prevail against the general power of the legislature to select and prescribe punishments. These rights are secured to all; to criminals, as well as to others ; and a punishment consisting solely, in the deprivation of such a right, would be an evident infringement of the constitution. Any punishment operating as an infringement of some rule thus expressly established, or some right thus expressly secured, would be unconstitutional ; and all punishments which do not subvert such rules and rights of the constitution, are within the scope and choice of the legislative power. But while many rights are consecrated,' as universaj an¿ inviolable, the right of eligibility to office, is not so 0 1-3 v
Eligibility to office is not so secured,
secured. It is not one of the express rules of the constitution, and is not declared as a right, or mentioned in terms as a principle, in any part of the instrument. Important as this right is, it stands, as the right to life itself stands, subject to the general power of the legislature, over crimes and punishments. As a right flowing from the constitution, it can not be taken away by any law declaring that classes of men, or even a single person not convicted of a public offence, shall be ineligible to public stations; but as a right not expressly secured by the consti*707tution, It may be taken from convicted criminals when the legislature in their plenary power over crimes, deem such a deprivation, a necessary punishment. To say this, is to say in substance, that the right in question, may be forfeited by crimes, when the legislature so direct. If this right is taken from none but malefactors, in punishment for offences declared by law, and ascertained in the due course of justice, the sense of the whole constitution, is maintained : a.nd the public, it may be presumed, will not find their choice of agents much abridged by the exclusions from office, which their own legislators, courts and juries may thus add to those specified in the constitution.
Each house of the legislature is the judge of the qualifications of its own members ; and it is said, that this provision of the constitution, is infringed, by the disqualification in question. The sense of this provision is, that each house shall decide upon the qualifications of its own members without interference or control from any other authority ; but this part of the constitution does not define any qualification which shall be allowed or required by either house. The only qualification made requisite by the constitution for a senator, is that he shall be a freeholder ; and in respect to members of the assembly, no qualification whatever is required by the constitution. Whether the legislature can. exclude from public trusts any person not excluded by the express rules of the constitution, is the question which [ have already examined : and according to my views of that question, there may be an exclusion by law, in punishment for crimes; but in no other manner, and for no other cause. If then a disqualification for crime, is constitutional, each house of the legislature, hound to support the constitution,, would give effect to the disqualification. But as (he authority of each house is exclusive and supreme in all questions concerning the qualifications of its own rajembers, if eh ther house should consider such a disqualification unconstitutional, or for any reason whatever, should disregard it, the opinion of the house would prevail, in respect to the seat and rights of any member declared ineligible by the courts. The disqualification pronounced by the courts, would thet» *708fail to produce an exclusion from the legislature ; but it Fou^ nevertheless, be effectual to exclude from all other public stations. ’Its effect in respect to all other public eraployments, must be decided by the tribunals of justice.
*707infliction of as a punish^mpatibie m tution which P™"des shall be the purifications0 of QW0
*708Thus, the same question, must for different objects, receive decisions from different jurisdictions ; and under one constitution and one system of laws, the same decision may be expected from all the public authorities. But if the senate or the assembly on one side, and the courts of justice on the other, should make opposite decisions respecting such a disqualification, both decisions would prevail in different respects. Thq power of each house of the legislature to judge of the qualifications of its own members, doqs not determine or illustrate what is, or is not a qualification; the statute to suppress duelling, does not propose to deprive., nor can any law deprive the several houses of the legislature of their exclusive jurisdiction; and this part of (he constitution, is therefore not infringed by the judgment of disqualification now in question.
It has been strongly urged, that the power to prescribe this species of punishment may be abused. That such a power may be abused, can not be denied ;"since all power entrusted to men, is subject to abuse. The power to declare crimes and prescribe punishments, is high, indefinite, and discretionary ; and therefore affords ample room for abuse. Yet the legislature by their acts, instead of any tendency to severity, show a strong disposition to mildness, in the use of their power over crimes and punishments. That disqualification to hold public trusts, will become a frequent punishment, seems not probable ; the legislature having hitherto adopted this punishment, only in the two cases of bribery and duels. But whatever may be the danger' of abuse, the punishment itself is not unconstitutional. The remedy for abuse of. the legislative power, in enacting laws which may be unwise, while they are not unconstitutional, is not in the courts-of justice. It is found in other parts of the system, in frequent elections and in the due course of the legislative power itself, which alike enacts and repeals lqv(s, in pursuance of public opinion, That this punish*709ment is little consonant to the genius of our institutions ; that there is an ample choice of punishments for crimes, without adopting this ; that the electors and the appointing powers should enjoy their free choice for public stations, without legal exclusions even for crimes, are reasons of great force ; but they are reasons upon which the legislature must decide.
My opinion upon the whole case, is, that the punishment of incapacity to hold office, prescribed by the act to suppress duelling, is not inconsistent with the constitution ; and that this cause has been rightly determined by the courts, through which it has passed.
Bowman, Burt, Clark, Dudley, Earll, Gardiner, Haight, Lynde, Mallory, M’Call, M’Intyre, Redfield, Sudam, Thorn, Ward, Wooster and Wright, Senators, eoncurred.
Forafgrmance *3 s for rever- ^ L
Ogden, Senator, dissented.