Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-03-13
CoURT or IRE STATE OF


AA4AE4 - AAaAAa az ~ N-C rN@N
mon Pleas OF FrankE County:
StroBg, 1.-The act of congress under
which the defendant below j~ustiies his
refusal to receive the vote Of the plain
tiff. is the u approved on the Sd day Of
March, 1865. The tw~enty-first section is
the only one applicable to this case, and
it is as follows:
Ind be it further enacted, That in
addition to the other lawful penalties Of
the crime of desertion from the military
or naval service, all persons who have
deserted the military or naval service OF
the United States, who shall not return
to said service or report themselves to a
provost marshal within sixty days after
the proclamation hereafter mentioned,
shall be deemed and taken 10 have vol
UNFAIRLY reiinquished and forfeited their
rights Of citizenship, and their rights TO
become citizens; and such deserters shall
be forever incapable of holding any Office
Of trust or profit under the United States
or of exercising any rights Of citizens
thereof; and all persons who shall here
after desert the military or naval service,
aud all persons who, being duly enrolled.
shall depart the jurisdiction Of the dis
trict ia which he Is enrolled, or go beyond
the limits Of the UGSted States with in
tent to avoid any draft into the null
tsry or naval service, duly ordered,
shall be liable 10 the penalties OF this sec
ton"
This is followed by a clause author
izing and requiring the president to issue
Ais proclamation setting forth the pro-
'vfs5ons Of the section, and we know
judicially that this was done IN the 18th
of March, 1865.
The act of congress is highly penal.
II imposes forfeiture of citizenship 49,
deprivation Of the rights Of citizenship
as penalties for the commission a a
crime. It's avOwed purpose is to add to
the penalties which the Law had previ-
Ously affixed 10 the offense Of desertion
from the military and naval service Of
the United States, and deuOminates the
additional sanctions provided as penal
ties. Such being its character, it is,
under the well known rule of law, to
receive a strict construction in favor of
the citizen.
The eonstitutionality Of the act has
been assailed on three grounds, The
first Of these is that it is an er post fdctO
law, imposing an additional punishment
for an Ohense committed before its pas
sage, aud altering the rules of evidence
so as to require different and less proof
Of guilt than was required at the time of
the preparation Of the crime. The sec
Ond objection Is that the act is an attempt
by congress 70 regulate the right Of sur
frage in the states, OF to impair it and
the third objection is that the act pro-
poses to infict pains and penalties upon
offenders before and without a trial and
conviction by due process Of law, and
that il is therefore prohibited by the
bill Of rights.
In the view which we take of this case,
aud giving to the enactment the con-
struction which we think properly be-
longs to it, it is unnecessary to consider,
at length, either Of these objections to its
cOnstitutionality. 1t may be insisted
with strong reason that the penalty of
forfeiture Of citizenship, imposed upon
those who had deserted the military or
naval service prior to the passage Of the
act, is not a penalty for the original de-
S~ertiOn, but for persistence in the crime,
for failure (in the language of the stat
ute) to return to said service, or to report
TO a provost marshal within sixty days
after the issue Of the presidents prOclR-
nation. If this is so, the act of congress
is in no sense eT post tdctO, and it is not
for that reason, in conflict with the con-
stitution. Its operation is entirely pros
pective. If q drafted man owes service
10 the federal government, every new
TO render the service may be re-
garded as a violation Of public duty, a
public Offense for which congress may
a penalty. And as it is the daty
Of every court to eonstrue a statute, if
possible, SO Ut res Hldgts UdIeGt, guam
DeFe0t, that construction of this act must
be adopted which is in harmony with
the acknowledged powers Of con-
gress, and which applies the forfeiture
Of citizenship to the new offense de-
on fail&oeSO return 10 service, or
TO report to the provost marshal.
The second objection also assumes
more than can be conceded. 1t is not to
be doubted that the power to regulate
suffrage in q state, and to determine who
shall or who shall not be a voter, be-
exclusively to the state itself. The
constitution Of the United States confsrs
40 authority upon congress to prescribe
he qualifications Of electors within the
several states that compose the federal
Congress is indeed empowered to
regulations for the time, plsee and
manner Of holding elections for senators
md representatives, or to alter those
made by the legislature Of a state, eX-
,ept those in relation to the places
# choosing senators but here the
)OWer stops. Inc ElgQL or SUI
at 3 state election is a state
ight-franehise comfortable only by
he state-which congress- can neither
rive nor take away. If, therefore, the
now under consideration is in truth
IN attempt to regulate the right of suf-
in the state, or to prescribe the con-
litions upon which that right may be
Exercised, it must be held unwarranted
" the constitution. In the exercise of
Is admitted powers, congress may doubt
ess deprive an individual Of the opDor- {
unity to enjoy a right that belongs to =,
i'm as seitizen Of a state, even the right {
f suffrage. But this is a different thing /
rom taking away or impairing the right :
tself. Under the laws Of the federal I
overnment a voter may be sent abroad 3
D the military service Of the country, !
nd thus deprived Of the privilege of
xercising his right, II a voter may be '
nprisoned for a crime against the :
Jnited States. But it is a perveFsion of s
spguage to call this impairing his right q
+ suffrage. Congress may provide laws s
- -.Tsw1fsap .of akfaaa -