Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-03-13


enactments have been made at diff
ferent times respecting the pun
ishments TO be inflicted for the
offense. The punishment OF death in
time OF peace was abolished by the act
Of May Is, 1872, and by the act of March
2, 1888, that section Of the repeating act
was itself repealed, 30 far as il applies to
any enlisted soldier who shall be con-
victed by a general court martial Of the
crime of deserti0n. BY the act Of Janu-
airy IL, 1872, an additional penalty was
prescribed for desertiOn, and it was de-
claFed that such soldier shall and may
be tried by a court martial and pun
ished. "-(Brightly's dig, 3d. The thir-
tenth section Of the act of March 3,
1853, which declared that any person
failing to report after due service Of no
tice that he had been drafted, shall be
deemed a deserter, enacted that such a
person shall be arrested by the provost
marshal and sent to the nearest mill
tary post for trial by court martial,
unless upon proper showing 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 in courts martial, and the in
Fiction Of no punishment or forfeiture,
except upon conviction aud sentence in
such courts. The act Of 1906 provided
for general courts martial and made
minute and careful regulations for their
| organization, for the condHct Of their
proceedings, and for the approval or dis
approval Of their sentences. Subsequent
acts made some changes, but they have
restrained the jurisdiction or diminished
the powers Of such courts. It is to such
a code Of laws, forming a system de-
Vised for the punishment of desertiOn,
that the tWenty-first section Of the act Of
March 3, 1865, was added. It refers
plainly TO pre-existing laws. It has the
single object Of increasing the penalties,
but il does not undertake to change or
dispense with the machinery provided
for Furnishing the crime. The common
rules Of construction demand that il be
read as il it had been incorporated
into the former acts. And if it had been,
if the act Of 1906, and its supplements
had PIE ieribed that the penalty for de-
sertion, OF failure to report within q des-
ignated time after notice of draft (which
the act Of 1865 declares deseTtiOn) should
be punished on conviction of the same,
with forfeiture of citizenship and death,
or, in lieu Of the latter, such other pun
ishment as by the sentence Of a court
martial may be inflicted, would any one
contend that any portions Of this punish
ment could be inflicted without conaic-
ton and sentenee2 Assuredly not and
if not, so must the act Of 1865 be con-
strued now. It means that the forfeiture
which it preseribes, like all other penal
ties, must be GdjWdged to the convicted
person, after trial by a court martial, and
sentence approved. For the conviction
and sentence of such q court there can be
no substitute. They alone establish the
guilt of the accused, and fasten upon
him the legal consequences. Such, we
think, is the true meaning Of the act, a
construction that cannot be denied to it
without losing sight of all the previous
legislation respecting the same subject
matter, 10 part Of which does this act
profess 10 alter.
It may be added that this construction
is not only required by the universally
admitted rules Of statutory ~interpreta-
ton, but it is in harmony with the per-
sonal rights secured by the constitution,
and which congress must be presumed
to have kept in view. 1t gives to the
accused q trial before sworn Judges, a
right to challenge, al opportunity of de-
Tense, the privilege of hearing the wit
nesses against him, and of calling wit
uesses in his behalf. It preserves the
common law presumption of innocence,
until he has been sdjudged guilty &C
cOrding to the forms Of law. 1t gives
inality to q single trial. If tried by q
court martialan M acquitted, his innocence
can never again be called in question and
ne can be made to suffer no part of the
penalties prescribed for guilt. On the
other hand, if a record of conviction by
a lawful court be not a prerequisite to
suffering the penalty Of the law, the act
Of congress may work intOlerable hard
ships. The accused will then be obliged
to prove his innocence, whenever the
registry OF the provost marshal Is ad-
dUced against him. No decision of q
board Of election officers will protect him
against the necessity of renewing his
defense at every subsequent election, and
each time with increased difficulty,
arising from the probable death or alb
sence of witnesses. In many csses this
may prove q gross wrong. It cannOt be
doubted that in some instances there
were cause that prevented a return to
service or a report by persons registered
as deserteFs by provost marshals, that
would have been held justifying reasons
by a court martial, or at least would have
prevented an approval Of the courts SEN
tenee. 1t Is well known also that some
. WIZ hG40 ACAA1IEAEA AEoELAEA1 WELEd q LAE
time actually in the military service as
volunteers, and hOnOrably ~diseharging
their duties to the government. To hold
that the act of congress imposes upon
such the necessity Of proving their limo
cence, without any conviction Of guilt,
would be an unreasonable construction
of the act, and would be ~attributiHg to
the national legislature an intention net
warranted by the language and connec-
ton OF the enactment.
1t follows that the Judgment of the
court below upon the casesstated was
right. The plaintiff, not h--.ing been
convicted of desertiOu and fae-re to re-
turn to the service, or to repOrtE a pro-
vOst marshal, and not having been
sentenced to the penalties and fOrfeitures
Of the law was entitled to vote.
The judgment is affirmed.
Woodward Oh. il concur in the
conclusion stated in the above opinion
and in most of the reasoning by which
that conclusion is reached.
But l do not concur in treating the act
Of congress as a valid enactment, for 1
believe it to be an ez post fdcto law, in
respect to all soldiers except such rs
commit the crime Of desertiOn after the
date of the law. This is not a case Of
desertiOn subsequent to the enactment,
but prior to it, and the penalties Of the
OffenSe are such as were fixed by law
when the Offense was committed, and it
is not competent for the legislature to in
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