Bedford inquirer. [volume] (Bedford, Pa.) 1857-1884, 1866-07-27


the judges of election amy such judicial func-
tons. They arc not sworn to try issues in
criminal cases. They have no power to
compel the attendance Of witnesses, and
their Judgment 1t rendered would be bind
ing upon no other tribunal
Even if they were to assume jurisdiction
Of the offence described in the act Of Com
gress, and proceed to try whether the appli-
cant for a vote has been duly enrolled and
drafted whether he has received notice of
the draft whether he had desertedaaa failed
70 return to service or failed 70 re-, Oft to L
Provost Marshal, and whether he 4 justi-
flying reasons for such failure, and # after
such trial they were to decide that he had
not forfeited his citizenship all this would
not amount to an aequittal. 1t would not
protect him against subsequent similar ac-
cusation and trial 1t would not protect
him against trial and punishment bya court
martial Surely that is no trial by due pro-
cess of law, the judgment in which is not
final, decides nothing, but leaves the accused
exposed to another trial In different tribu-
nai and to the imposition by that other tri-
bunal of the full punishment prescribed by
law
Moreover it is not in the power Of Con-
gress to confer upon such tribunal, which
ID GAGluSAAEky VI RbtLG NAGaNAOus j
to try offences against the United States
VS.. United States I'll s. AZ c., 1881 which
was an action for penalties, declared to be
recoverable as other debts. the doctrine
seems a plain one, that Congress cannot put
any of the judicial power of the United
States in the courts of any other govern
ment or sovereignty. Martin vs. Hunter
lnc1oa I INboofnn 2AA 220 E'l,1r~rrc Daoi-
Con, 243, and ScoYille Us. Garfield, IA
Johns, 33S. And clearly if this is so Con-
gress cannot make board of State election
officers competent to try whether person
has been guilty Of an offence against the
United States, and if they find him guilty
to enforce a part Of the prescribed penalty.
IF therefore the act Of March 8, 1865, re
ally contemplates the infiction of its pre-
seribed penalty or any part OF it without
due process Of law, or if it attempts to con-
fer upon the election officers OF a State the
power to determine whether there has been
violation of the act incurring the penalty,
aud to enforce the penalty or any part Of It,
it may well be doubted whether it is not
trans gressive of the authority vested in
Congress by the Constitution.
But such is not the fair construction Of
the enactment. 1t is not to be presumed
that Congress INTENDED to transgress It's
powers, and especially is this true when the
act admits Of another construction entirely
coRsonant with all the provisions of the con
stitution.
What then is its true meaning? As
already observed, forfeiture Of citizenship is
prescribed as penalty for desertion, an ad
dltIOHai peHalIy, NOT Euf an oIIencg SyU-AIIlIit-
ted before the passage of the act, but for
continued desertion and failure to return or
report 1t is not a new consequence of a
penalty, but it is an integral part Of the
thing itself Nor is it the whole. 1t is
added to what the law had previously enact
ed to be the penalty Of desertion, as impris
onment is sometimes added to punishment
by fine
1t must have been intended, therefore,
that it should be incurred in the same way,
and imposed by the same tribunal that was
authorized to impose the other penalties for
the offence. 1t would be very absurd to
suppose that two trials and two condemna-
tions for cne crime was intended, or that it
was designed that criminal might be SEN
tenced in one count to undergo part of the
punishment denounced by the law, and be |
punished in another court by the imposition |
of the remainder. The law as it stood when |
the act of 1865 was passed, had provided a !
in which alone the c,..le Of desertion |
could be inflicted. The consequences of
may be noticed in other courts, |
but the tribunal appointed by the law for
that purpose is the only one that can deter |
mine whether the crime has been committed, |
and adjudge the punishment.
The act Of March Sd, 1865, is not to be |
considered apart from the other legislation |
respecting the crime of desertion. 1t is one
Of series Of acts pertaining TO the same
subject matter. 1t must, therefore, be in |
terpreted with them all in view This is an
rule Of statutory construction. 80 !
long ago as Rex VS.. Soxdale, l Burrows, |
lat, Lord Mansfield said when speaking Of |
acts Of Parliament, THAT all which relate to
the same subjects, notwithstanding some of
them may be expired or not noticed, must !
be taken to be one system and construed |
So Chancellor Kent, in the !
first volume of his commentaries, 1854, |
said 'iti to be inferred that code of stat
utes relating to one subject was governed by |
one spirit and policy and was intended to be
consistent and harmonious IN Its several parts
and provisions. In looking through the
numerous acts Of Congress relating to de-
sertion from military or naval service it is
plainly to be seen that they all contemplate
inhiction of any penalty. and court martials
are constituted and regulated for such trials. /
The twentieth article OF war, enacted On the
10th of April, 1906, (Brightly's Dig, IS, J
Is in these words ''all officers and soldiers
who have received pay, or have been duly
enlisted in the service of the United States,
and shall be coaeicted of having deserted,
the same shall suffer death or such other
as by sentence Of court martial
shall be inflicted. y Other enactments
have been made at different times
respecting the punishments to be inflicted
for the offence The punishment Of death
in time of peace was abolished IN 1880.
Corporal punishment By stripes was abol-
ished by the act of May l6, 1872, and by the
act of March ID, 1888, that section Of the
repeating act was itself repealed so far as
it applies to any enlisted soldier tCh0 sitalt6e
conriacted by general court martini Of the
crthaeof desertion By the act of January
IL, 1912, an additional penalty was prescrib-
ed for desertion, and it was declared that
such soldier shall and may be tried by a
court martial and punished. Brightly s
Dig, So The 18th section OF the act Of
March Sd, 1868, which declared that any
person failing to report after due service of
notice that he had been drafted, shall be
deemed deserter, enacted that such per-
son be arrested by the Provost Marshal
and sent to the nearest military post for trial
Jy court marital, unless upon proper show
ing that he Is not liable to military duty, the
board of enrolment shall relieve him from
the draft All these acts OF Congress
manifestly contemplate trial for desertion by
corrt martial and the inhiction of no pun