Year: 1866

clamation. If thisis 50, the act of Con-
] gress is IN no sense &c post ffcto, and it is
not for that reason IN conflict with the Con-
stltution. Its separation is entirely pTosDee-


tive If drafted man owes service to the
| Federal Government every new refusal to


render the service may be regarded as a


violation Of pubic duty, public offence for
! which Congress may impose a penalty. And
| It Is the duty OF every court to eonstrlle a
statute. if possible, so ''Ht res maais galeat
| guam pefeat, that construction Of this act


must be adopted which Is 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 Pro-


vost Marshal.


The second objection also assumes more
than can be conceded. Itisnot to be doubt


cd that the right TO regulate suffrage in a
State, and to determine who shall, or who
shall not be voter, belongs exclusively to
the State itself The Constitution of the
! United States confers no authority upon
| Congress to prescribe the qualification of
| electors within the several States that COM


pose the Federal Union. Congress is in
! deed empowered to make regulations for the
i time, place and manner of holding elections
for Senators and Representatives, or to


alter those made by the legislature of


State, except those in relation TO the places
of choosing Senator's but here its power
stops. The right OF suffrage at a State cleo
ton is State right, franchise comfortable


only by the State, which Congress car nei-
ther give nor take away If, therefore, the
act now under consideration is in truth an
attempt 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 constitu-


ton. In the exercise of its admitted pow
ers, Congress may doubtless deprive an IN
dividual Of the opportunity to enjoy a right
that belongs to him as a citizen Of State,
even the right of suffrage. But this is a
different thing from taking away or impair
ing the right itself Under the laws of the
Federal government, a voter may be sent
abroad in the military service of the coun-
try. and thus deprived of the privilege Of
exercising his right, or voter may be i'm
pTlsOned for a crime against the United
States, but 1t is a peTverslOn Of language to
call this impairing his right of suffrage.
Congress may provide laws for the paturali-
cation of aliens, or it may refuse 20 provide
such laws. Its action or non-actIon may
thus determine whether individuals shall or
shall not become citizens of the United
States, and ] cannot doubt as a penalty for
crime against the general government, Con-
gress may impose upon the criminal forfeit
ure of his citizenship Of the United States.
DisiTanchisement Of a citizen for crime, is
no unusual punishment Barker VS.. the
People 30 Johns. .45S II. by the organic
law of State, citizens OF the United States
only are allowed to vote, the action or nom
action of Congress may thus 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 to him by the State con-
stitution, and to be held on the terms pre-
scribed by that constitution alone. 1t Is an
integral part Of the State government.


BUTT is not correct view Of the act of
Congress now before us to regard it as an
attempt to override State constitutions or
to prescribe the qualifications of voters
The act makes no change in the organic
law { f the State. 1t leaves that as before,
to confer Oh, riGhtsf suffrage as il pleases


The enactment operates upon ar indiyid-
ual offender. Furnishes him for violation of
the Federal law, by deprivation OF his citi-
zenship Of the United States, but it leaves
each State to determine for iso'S Thethcr
such an individual may be a voter. 1t does
no more than increase the penalties of the
law upon the commission of each crime.
Each State defines for itself what shall be
the consequence of the infiicti0n of such
penalties. And with US it is still our own
constitution which restricts the right Of suf-
frage, and confers upon it those only who
are inhabitants of the State, and citizens
Of the United States.


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 aud without a
conviction by due process of law. The fifth
article Of the amendments to the eonstitu-
ton ordains that no person shall be held to
answer for a capital or other infamous
crime, unless on presentment, or lndict-
ment of grand jury, except in cases ari-
sing in the land or naval forces, or in the
militia, when In actual service, in tine 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 he
be compelled in any criminal case to be a
witness against himself, nor be deprived of
life or property without due process oflaw.
The sixth article secures to the accusedin in
all criminal prosecutions certain rights
among which are public trial, by ajury of
the yicinage, information of the nature and
cause of the accusation. face TO face pres
once with the witnesses against him com
pulsory process for his own witnesses, and
the assistance of counsel. The spirit of
these constitutional provisions is briefly
that no person can be made to suffer for a
criminal offence unless the penalty be In
ficted by due process of law.-What that's
has been often defined, but never better
than it was both historically ard critically
By Judge Curtis, of the Supreme Court of
the United States, in Den VS.. Murray ct al,
is Howard 272. 1t ordinarily implies and
includes complainant, defendant and
Judge, regular allegations, opportunity to
answer, and a trial according to some settled
course of judicial proceedings. 1t must be
admitted there are few sccepti0nal cases
Prominent among these are summary pro-
ceedings to recover debts due to the govern
ment, especially taxes and sums due by de-
faulting public officers. ButI can call to
mind no instance in which it has beer held
that the ascersainment of guilt Of public
offence, and the imposition OF legal penal
ties, can be in any other mode than by trial
according to the law Of the hand, or due
process of law, that Is the law of that par
tieular case, administered by judicial tribu-
nal authorized to adjudieate upon it. And
cannot persuade myself that judge Of elec-
ton or q board of election officers, constitu-
ted underthe State laws, is such tribunal.
cannot think they have power to try Grim
inal offenders still left toadjndge the guilt or
Innocence of an alleged vIolater OF the laws
Of the United States \ trial before such
officers is not due process OF law for the
.Ie.,..s. acorn. 3tpr IN flrn