Year: 1866

Hoboken Land Co., is Howard, 276; Van
Swarton Y. Com, II Harris. 292 Hence
summary convictions, settlements Of accounts,
assessments of damages and of taxes, taking
property for public use, the location Of high
ways and other modes are committed to
tribunals proceeding out of the course of
common law Precisely Sc is the trial of
citizenship committed to the election board
preliminary to exercising suffrage.


! When the act of Congress declared that a
deserter, failing TO report, should stand in
the condition OF one renouncing citizenship,
it deprived Kim of none of the fundamental
rights these constitutional clauses protect, but
left him in full possession Of all his natural
personal rights. His offence was political
against the right of his sovereign to his
services; and his punishment is also political
to wit, privation of his citizenship Unlike
the natural rights belonging to man by
creation, citizenship results from the law of
government, and is regulated by the rule Of
the country in which it is claimed. Unlike
those rights, also, it may be relinquished
No one may voluntarily surrender his life
except In response to duty higher than life.
No man may lawfully strip himself of the
right Of acquiring and holding property
voluntary pauperism is crime against
society. If to day, by the most solemn in
strument, he should release his right to ac-
quire and hold property. tomorrow he could
repudiate it as contrary TO reason and to the
welfare Of mankind. Bat citizenship may
be surrendered. This is recognized in the
constitution itself, which provides in the
case of removal from the State probation
OF SIX months, residence before the right
can be fully resumed. Naturalization, un-
der the law of Congress, is founded ON the
~. l..
sion, not only sWears allegiance to- this
government, but renounces his allegiance to
every other government, potentate or power.
So faris the right of voluntary surrender
recognized that even the declaration Of an
intention to become a citizen, entities him
to the protection of our flag, and subjects
him to military service. Sec l. act of
March 3. 1863


What did Congress mean when 1t declares
that such deserteEs, viz. those falling to
return to service or toreport Tor duty, shall
be torecer incapable Of holding any Office of
trust or profit under the United States, OF
Of exercising any rights of citizens thereof.


Did they mean this only In the event of con-
yiction of desertion Ia a military court ?
Certainly not, or they would have said so,
as they did in the proTiso to the 4th section
of the act of 14th April, 1902, that no per-
son who has been legally elected of having
joined the army of Great Britain, Ito wit, a
Revolutionary Tory shall be admitted
citizen. The context forbids the idea IN
saying that all persons, who, being duly
enrolled, shall depart the jurisdiction OF the
district in which they are enrolled; or go be-
yond the limits of the United States, with
intent to avoid the draft into military or ma
val service duly ordered, she'll b. liable to
lsl,, -,1P az
when, Congress declared them incapable
f6rereg il did not mean that if they remained
abroad until the war was over, the provost
marshals were disbanded, and the military
courts discontinued, the disability should be
condoncd by their absence. If a deserter
were TO present himself to Congress for ad-
mission, would his disfranchisementb be coIs-
sidered cured2 And how would the fact be
incurred into2 Would House, authorized
to Judge Of the qualifications ofits members,
remit him to a trial by court martial? Con-
gress having declared the disability, but APP
pointed no tribunal for its enforcement, it
win not do TO say il cannot be inquired into
when it becomes necessary to be determined,
not for punishment, bnt as a condition to
the exercise of a personal privilege. And
Congress having declared it without refer
ence to any conviction. it viii not do to say
it can be shown by conviction.


Upon the whole case l am of opinion that
the election board had right to determine
the question of Henry Reilly's citizenship,
and for this purpose to ascertain the facts
upon which his right to vote depended.


1t may be that in this opinion ] am in
error, and am misled by my feeling But if
| am il is because every sentiment of my
heart aud every conviction of my mind have
been with MY country In the dreadful strife
she has maintained. In such struggle I
would not abate one jot or title other pow
er, but would rather pour oil ON every
grating joint, lubricate every point Of con-
tact, remove its friction and increase its
rnotion, that. in tie end might see her
shooting ike an engine of sublimity and
power, along a smooth firm track, carrying
peace, prosperity and protection in her
train


1t is proper should remark that this
opinion was written in view of the argu-
ment at bar, and of what then transpired.
/ am glad to fiHdI differ from the opinion
just read in but single point, the mode of
trial. But when counsel SO far forget their
duty us to put in print the charge that the
act of the last Congress was among It's
'steor;t acts of allfdnlg, it is proper to let
truth herself administer the reprimand.