Year: 1866

iudiciously that this was done on the
l1th of March, 1865


The act of Congress is highly penal.
Itimposes forfeiture of citizenship and
deprivation Of the rights Of citizen
ship as penalties for the commission
of a crime. Its avowed purpose is to
add to the penalties which the law
had previously affixed to the crime of
deserton from the military or naval
service of the United States, and it
denominates the additional sanctions
provided as penalties. Such being its
character, it is, under the known rule
Of law, to receive strict construction
in favor Of the citizen.


The constitutionality of the act has
been assailed or three grounds. The
first Of these is that it is an er post
facto law, imposing an additional pun
ishment for an offence committed be-
fore its passage, and altering the rules
Of evidence SO as to require different
and less proof of guilt than was re-
quired at fhe time of the perpetration
of the crime. The second objection is
that the act is an attempt by Congress
to regulate the right of suffrage in the
States, or to impair it; and the third
objection is that the act proposes to
infict pains and penalties upon offend
ers before, and without 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
belong to it, it is unnecessary to con-
slider at length either of these objec-
tions TO its constitutionality. 1t may
be insisted with strong reasons that
the penalty of forfeiture of citizenship
Imposed upon those who had deserted


the military or naval service, prior to


the passage of the act is not a penalty
for the original desertion, but for per-
sistence in the crime, for failure (in
i the language of the statute) to return


to said service, or TO report to the


provost marshal within sixty days


after the issue of the Presidents pro.


clamation. If this is so, the act o.
Congress is in no sense eD post fdct0


and it is not for that reason in conflict


with the Constitution. Its operation


is entirely prospective. If drafted
man owes service to the Federal Gov,


ernment, every new refusal to render


the service may be regarded as VIC


lation of public duty, public offence
for which Congress may impose 8


penalty. And as it is the duty o.


every court TO construe n statute, il


possible, so "ut res magis raledt, guam


paredt," that the construction OF this
act must be adopted which is in har


mony with the acknowledged power:


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 proves
marshal.


The second objection also assumes


more than can be conceded. IT is no


to be doubted that the power to regu


late suffrage in State, and to deter
. mine who shall or who shall not be
, voter, belongs exclusively to the Stat
itself. The Constitution of the Uni
g ted States confers no authority upoi
Congress to prescribe the qualities
S tions of electors within the sewers


States that compose the Federa
c Union. Congress is indeed empow
:, cred to make regulations for the time
q place and manner of holding election
: for Senators and Representatives, o
s to alter those made by the Legisla
e ture of a State, except those in relt
q tion to the places oil choosing Sens


tors, but here its power stops. TIL
J. right of suffrage at State election
IS a State right, a franchise conferabl
= only by the State, which Congress ca
y neither give nor take away. If, there
Is fore, the act now under consideratio
y is in truth an attempt to regulate th
~ right of suffrage in the States, or
u prescribe the conditions upon whic


that right may be exercised, it mus
- be held unwarranted by the ConstitI


ton. In the exercise of its admitte
n powers, Congress may doubtless d.
q e prive an individual of the opportunit
|" to enjoy right that belongs to hil
q, "a as citizen of State, even the rigl
~ q of suffrage. But this is a diifereI
- - thing from taking away or impairin
= = the right itself Under the laws
70 the Federal Government, a voter ma


be sent abroad in the military servit
dO O of the country, and thus deprived
ed the privilege of exercising his righ
re- or voter may be imprisoned for
" crime against the United States, bI
re, it is a perversion of language to ca
Up this imparing his right OF sufirag
nv , Congress may provide laws for Il
Or naturalization of aliens, or it may r
all fuse to provide such laws. Its actiC
o. or or noD-action may thus determil