Year: 1866

er, Furnishes him for violation of the Federal
law, by deprivation of his citizenship of the
United States, but it leaves each State to de-
terlnine for itself whether such an Individual
may be voter. 1t does no more than in
crease the penalties of the law upon the
commission of crime. Each State defines
for itself what shall be the consequences Of
the inhiction of such penalties. And with
US it is still our own Constitution which re-
stricts the right of suffrage and confers it
upon those only who are Inhabitants of the
State and citizens of the United Safes


The third objection against the validity of
the act of Congress would be a very grave
one, if the act does in reality impose pains
and penalties before and without convic-
ton by due process of law. The fifth article
of the amendments to the Constitution or
dains that no person shall be held to an
swer for capital or other Infamous crime,
unless on presentment, or indictment of a
grand jury, except incases arising in the land
or naval forces, or in the militia, when In ac-
tual service, in time of war or public danger;
nor shall any person be subject for the same
offence to be twice put in jeopardy of life or
limb nor shall be compelled in any criminal
case to be witness against himself nor be
deprived of life, liberty or property without
due process of law" The sixth article Sc
cures to the accused in all criminal prosecu-
tions certain nj ghts, ,amongwhich are a speedy
and public trial, by a jury OF the vicinage,
information of the nature and cause OF tlfe
accusation, face to face presence with the
witnesses against him, compulsory process
for his own witnesses, and the assistance Of
counsel. The spirit of these constitutional
provisions is briefly thlt no person can be
made to suffer for criminal offence unless
the penalty be inflicted by due process of law.
What that is has been often. defined, but
never better than il was both historically and
critically by Judge Curtis of the Supreme
Court of the United States in Den as Muir
ray ct al, Is Howard 272. 1t ordinarily i'm
plies and includes a complainant, defend
ant md judge, regular allegations, Oppor-
tunity to answer, and trial according to
some settled course of judicial proceeding.
1t must be admitted there are few excep-
tional cases, Prominent among these are
summary proceedings to recover debts due to
the Government, especially taxes and sums
due by defaulting public officers. But can
call to mind no instance in which it has been
held, that the ascertainment of guilt of
public offence, and the imposition of legal
penalties, can be 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 par
ticular case, administered by judicial tri-
bunal authorized to adjudicate upon it. And
| cannot persuade myself that Judge of
elections or a board of election officers, con-
stituted under State laws, is such tribunal
| cannot think they have power to try Grim
inal offenders, still less to adjudge the guilt
or innocence of an alleged violator of the
laws OF the United States. a trial before
such officers is not due process of law for the
punishment of offences, according to the
meaning of that phrase in the Constitution.
There are, it istrue, many things which they
may determine, such as the age and residence
of person offering to vote, whether he has
paid taxes, and whether, if born an alien, he
has a certificate of naturalization. These
things pertain to the eascertainnen of polit-
zeal right. But whether he has been guilty
of criminal offence, and has, as conse-
quence, forfeited his right, is an inquiry OF
different character. Neither our Constitu-
ton nor our law has conferred upon the
judges of elections any such judicial func-
tions. They are not sworn. to try issues In
criminal eases. They have no power to com
pei the attendance of witnesses, and their
Judgment if rendered would be binding upon
no other tribunal Even if they were to as
sumo jurisdiction of the offence described
in the act of Congress, and proceed to try
whether the applicant for vote had been
duly enrolled and drafted, whether he had
received notice Of the draft, whether he had
deserted, and failed to return to service, or
failed to report to a provost marshal, and
whether he had justifying reasons for such
failure, and If after such trial they were to
decide that he had not forfeited his citizen
ship, all this would not amount to an acquit-
tai. 1t would not protect him against a sub
sequent similar accusation and trial, 1t would
not protect him against trial and punishment
by court martial Surely that is no trial by
due process of law, the Judgment in which
is not final, decides nothing, but leaves the
accused exposed to another trial in differ
ent tribunal, and to the imposition by that
other tribunal of the full punishment pre-
scribed by law.


Moreover, it is not in the power of Con-
gress to confer upon such tribunal, which
is exclusively of State creation, jurisdiction
to try offences against the United States
Notwithstanding the decision in Buckwalter
vs.. The United States, / S. and r., 1913,
which was an action for penalties, declared
to be recoverable as other debts the doc
trine seems 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.. Hunter lessee.
Wheaton, 304, $50 Fly VS.. Peck, Conn,
I42, and Scoville VS.. Garfield, ID Johns,
23S. And clearly, if this is so, Congress
cannot make board of State election officers
competent to try whether a 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 3, 1865,
really contemplates the infiction of It's pre-
scribed penalty or any part of it without due
process of law, or if it attempts to confer
upon the election officers of State the pow
er to determine whether there has been Vi
oIation of the act incurring the penalty, and
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.