Year: 1866

/ T NtOng. OuSt1C0. f-.ft.-..-r.e


Thn actof CONGRESS under which the de-


fendant below iustiiies his refusal to receive


the vote of the plaintiff is the one approved


on the Sd day Of March, 1865. The twenty
first section is the only one applicable to this
case. and it is as follows "4nd 6eH .f1trtle1.
enacted, That in addition to the other law


full 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 pro-
vost marshalwithin sixty days after theproc-
Iamation hereafter mentioned, shall be deem
ed and taken to have voluntarily relinquish-
ed 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 hereafter desert the military or ma
val service. and all persons who, being duly
enrolled shall depart the jurisdiction of the
district In which he is enrolled, or go beyond
the limits of the United States, with intent
to avoid any draft into the military or naval
service, duly ordered, shall be liable to the


penalties of this section. This is followed
by clause authorizing and requiring the


President to issue lis proclamation setting
forth the provisions of the section, and we
know iudiciousy that this was done on the


18th of March, 1865. 1000


The act of Congress is highly penal. 1t
imposes forfeiture of citizenship and depri
walton of the rights of citizenship as penal
ties for the comm ssion of crime. Its
avowed purpose is to add to the penalties
which the law had previously affixed to the
offense of desertion from the military or ma
val service of the United States, and it de-
nominates the additional sanctions provided
as penalties Such being its character, it is,
under the well known rule of law, to receive
a strict construction in favor of the citizen.


The constitutionality of the act has been
assailed on three grounds. The irstof these
is that it is an er post fdcto law, imposing an
additional punishment for an offense COM
mitted before its passage, and altering the
rules of evidence so as to require different
and less proof of guilt than was required at
the time of the perpetration of thecrinie. -
The second objection is that the act is an at
tempt by Congress to regulate the right of
suffrage in the States, or to impair it; and
the third objection is thatthe act proposes to
infict pains and penalties upon offenders
before, and without a trial and conviction by
due process of law, and that it is therefore
prohibited by the Bill of Rights.


In the view which we take of this case, and
giving to the enactment the construction
which we think properly belongs 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
peraltyof of forfeiture of citizenship imposed
upon those who had desertedthe military or
naval service, prior to the passage of the act,
is not penalty for the original desertion, but
for persistence in the crime, for failure lin
IL l.. .Qk Al.
service, or to report to a provost marshal
within sixty days after the issue of the Pres
ident's proclamation. If this is so, the act
of Congress is in no sense er post fdcto, and
it is not for that reason in conflict with the
Constitution, Its operation Is entirely pro-
spective. II drafted man owes service to
the Federal Government, every new refusal
to render the service may be regarded as
violation of public duty, a public offense for
which Congress may impose penalty And
as it is the duty of every court to construe q
statute, if possible, SO s'ut res nagfs Coteat,
qttdn, pereat, that construction of this act
must be adopted whichis in harmony with
the acknowledged powers of Congress, and
which applies the forfeiture Of citizenship to
the new offence described as failure to return
to service, or to report to the provost mar
shall.


The second objection also assumes more
than can be conceded. Its not to be doubt
ed that the power to regulate suffrage in a
State, and to determine who shall
or who shall not be voter belongs ex-
clusively to the State itself. The constitu-
tion of the United Strtes confers no author
ity tipon Congress to prescribe the qualiica-
tions of electors within the several States
that compose the Federal Union Congress
is indeed empowered to make regulations for
the time, place and manner of holding cleo
tons for Senators and Representatives, or to
alter those made by the Legislature of
State, except those in relation to the places
of choosing Senators, but here It's power
stops The right of suffrage alta State elec-
ton is State right, franchise comfortable
only by the State, which Congress can neither
give nor take away IF, therefore, the act
now under consideration is in truth an at
tempt TO regulate the right of suffrage in the
States, or to prescribe the conditions upon
which that right may be exercised. it must
be held unwarranted by the Constitution
In the exercise of its admitted powers, Con-
gress may doubtless deprive an individual
of the opportunity to enjoy a right that be-
longs to him as citizen of a State, even
the right of suffrage. But this is different
thing from taking away, or impairing, the
right itself Under the laws of the Federal
Government, voter may be sent abroad in
the military service of the country, and thus
deprived of the privilege of exercising his
right; or voter may te imprisoned for a
crime against the United States, but it is
perversion Of language 10 call this impairing
his right Of suffrage. Congress may provide
laws for the naturalization of aliens, or it
may refuse to provide such laws It's action
or non-action may thus determine whether
shall or shallshot become citizens
of the United States And cannot doubt
that as a penalty for crime against the Gen
eral Government Congress may impose upon
the criminal forfeiture Of his citizenship of
the United States. Disfranchisement of
citizen as a punishment for crime is no. unu-
s,lal punishment-B vs.. the People 20;