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

crime against the general government,
congress may Impose upon the criminal
forfeiture OF his citizenship Of the United
Disfranehisement of a citizen as
a punishment IS no unusual punishment.
Baker vs. The People, 20 Johns, ass. If
by the organic law OF q state, citizens OF
the United States only are allowed to
vote, the action or n~on-action of congress
may h u Indirectly affect the number of
those entitled to the right of suffrage.
Yet after all, the right Is one which its
possessor holds as a citizen Of a state,
secured 70 him by the state constitution,
and TO be held on the terms prescribed
by that constitution alone. 1t is an in
tegral part Of the state government.
But II y not a correct view Of the act
of congress now before US 10 regard it as
an attempt to override state constitu-
lions, or to prescribe the qualifications OF
voters. The act makes no change in the
organic law OF the state. 1t leaves that,
a before, to confer the right OF suffrage
IS it plezses, The enactment operates
upon an individual offender. Furnishes
him for violation of the federal law, by
deprivation of his citizenship Of the
United States, but it leaves each state to
determine for itself whether such an
individual may be a voter. 1t does no
more than increase the penalties of the
law upon b commission of crime.
Each state defines for itself what shall
be the consequence of the infiiction of
such penalties. And with US il is still
our own constitution which restricts the
right Of suffrage, and confers il upon
those only who are inhabitants Of the
state, and citizens of the United States.
The third objection against the validi-
ty of the act of congress would be a very
grave one, If the act does in reality i'm
pose pains and penalties before and
without q conviction by due process OF
law. The fifth article Of the amend
ments to the constitution ordains, " that
no person shall be held To answer for &
capital or other infamous crime, unless
on a preseDtment or Indictment Of a
grand jury, except in cases arising in the
land or naval forces, or in the militia,
when in actual service in time of war or
public danger, nor shall any person be
subject for the same ofense to be twice
put in jeopardy of life or limb; nor shall
he be compelled in any criminal case to
be a witness against himself, nor de-
prived Of life, liberty or property without
due process of law
The sixth article secures to the accused
in all criminal prosecutions certain
rights, among which are a speedy and
public trial, by q jury Of the vieinage,
information OF the nature and cause of
the accusation, face to face presence
with the witnesses against him, com
pulsOTy process for his sWn witnesses,
and the assistance of counsel. The spirit
of these constitutional provisions is
briefly that no portion a be made to
| suffer for a criminal Offense unless the
penalty be inflicted by due process Of
law. What that is has been often de-
fined, but never better than it was both
historically and critically by Judge Cur
It's, of the supreme court of the United
States, in Den. vs.. Murray ct al. IS
Howard, 272. 1t ordinarily implies and
includes a complainant, q defendant and a
Judge, regular allegations, opportunity
to answer, and 9 trial according to some
settled course OF Judicial proceeding. 1t
must be admitted there are a few excep-
tionsl cases. Prominent among these
are summary proceedings to recover
debts due TO the government, especially
taxes and sums due by defaulting public
officers. But l can call to mind no in
stance in which it has been held that
the ascertainment Of guilt Of q public
Offense, and the imposition Of legal pen
alties, a be made in any other mode
than by trial according to the law Of the
land or due process OF law; that is, the
law Of the particular case, administered
by d judicial tribunal authorized 20 adju-
dictate upon it. Aud / CannOt pursuade
myself that a judge OF elections or a
board of election officers constituted IN
der state laws is such q tribunal. /
cannot think they have power to try
criminal offenders, still less to ad-
Judge the guilt or innocence Of an
alleged violatOr OF the laws Of the
/ United States. a trial before such
officers is not u process Of law for the
punishment of O~ffsnses, according to the
meaning Of that phrase in the cOnstitu-
ton. There are, it is true, many things
which they may determine, such as the
age and residence Of q person offering to
vote, whether he has paid taxes, and
whether, if born an alien, he has a GER
Jifcate Of naturalization. These things
pertain to the ascertaiument of q pOliIi-
cal right. But whether he has been
guilty Of a criminal sffense and has, as q
consequence, forfeited his right, is an in-
curry of q different character. Neither
our constitution nor cur law has confer
red upon the judges Of elections any
such judicial functions. They were not
sworn to try issues in criminal cases.
They have no power to compel the at
tendance of witnesses, and their Judg-
ment, if rendered, would be binding
upon no other tribunal. Even il they
were to assume jurisdiction Of the oftsnse
described in the act of congress, and pro-
coed to try whether the applicant for q
vote bad been duly enrolled and drafted,
whether he had reeeiveT notice Of the
draft, whether he had deserted and failed
to return 20 service, or failed to report to
a provost marshal, and if after such trial
they were to decide hat he had not for
feited his citizenship all this would not
amount to an acquittal. 1t wouldn't
protect him againsta subsequent similar
accusation, and his trial would not pro-
tect him against trial and punishment by
a court martial. Surely that is no trial by
due process Of law, tie Judgment in which
is mot final, decides nothiDg, but leavesthe
accused exposed to another trial 10 q diff
ferent tribunal, and TO the imposition by
that other tribunal of the ~fulypunish-
ment prescribed by law. Moreover it is
not in the power Of congress to confer
upon such tribunal, which is exclusively
OF state creation, jurisdiction to try Of
lenses against the United States. Not
withstanding the decisi9n in Buckwater
VS.. the United States, II S. and R., 1913,
which was an action for penalties de-
clared to be recoverable as other debts,
the doctrine seems to be a plain one, that
congress cannot vest any of the judicial
power of the United States in the courts
of any other government or sovereignty;
Martin vs.. Hunters lessee, l Wheaton,
304, $50; Ely VS.. Peek, : Conn, 342, and
Scoviile VS.. Canfed, II Johns, S3S.
And clearly, il this issO, congress cannot
make a board of state election officers
competent TO try whether a person has
been guilty Of an offenSe against the
United States, and if they find him
guilty to enforce s. part Of the prescribed
penalties.
If, therefore, the act Of March 80,
1865, really contemplates the infection
of its prescribed penalty, or any part of
it, without due process of law, or if it
attempts to confer upon the election
officers of a state the power to determine
whether there has been q 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
transgressive 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 t~rransgress its
powers, and especially is this true when
the act admits Of another construction
ClncoAAAL wiz a. VIZ EACFAACAS Va ~
constitution.
What, then, is the true meaning?
AS already observed, forfeiture of citi-
zenship is prescribed as a penalty for
desertion, an additional penalty, not for
an offense committed before the passage
of the act, but for continued desertion
aud failure to return or report. It 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 enacted to be the
penalty Of desertion, as Imprisonment is
sometimes added to punishment by tine.
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 Ofense. 1t would be
very absurd to suppose that two trials,
and two COMBINATIONS for one crime
were intended, or that it was designed
that a criminal might be sentenced in
one court to undergo q part Of the pun
ishment denounced by the law, and be
punished in another court by the imposi-
ton of the remainder.
The law, as it stood when the act of
1865 was passed, had provided a tribunal
in which alone the crime Of desertiOn
could be tried, and by which alone the
HI g. I.-.-es.T aunI1 no inflicted I