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federal government, a voter may be sent abroad in the military service of the country, and thus deprived of the privilege of exercising his right; or a voter may be imprisoned for a crime against the United States; but it is a perversion of language, to call this impairing his right of suffrage. Congress may provide laws for the naturalization of aliens, or it may refuse to provide such laws; its action or non-action may thus determine whether individuals shall or shall not become citizens of the United States. And I cannot doubt that, as a penalty for crime against the United States, congress may impose upon the criminal, forfeiture of his citizenship of the United States; disfranchisement of a citizen, as a punishment for crime, is no unusual punishment. Barker v. People, 20 Johns. 457. If, by the organic law of a state, citizens of the United States only are allowed to vote, the action or nonaction 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 constitution, and to be held on the terms prescribed by that constitution alone. But it is not a 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 of the state; it leaves that, as before, to confer the right of suffrage as it pleases. The enactment operates upon an individual offender, punishes him for violation of the federal law, by deprivation of citizenship of the United States, but it leaves each state to determine for itself whether such an individual may be a voter; it does no more than increase the penalties of the law upon the commission of crime; each state defines for itself what shall be the consequence of the infliction of such penalties; and with us, it is still our own constitution which restricts the right of suffrage, and confers it upon 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 penalties before and without a conviction by due process of law. The 5th article of the amendments to the constitution ordains that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual 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 a witness against himself; nor be deprived of life, liberty or property, without due process of law." The 6th article secures to the accused, in all criminal prosecutions, certain rights, among which are a speedy and public trial by a jury of the vicinage, information of the nature and cause of the 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, that no person can be made to suffer for a criminal offence, unless the penalty be inflicted by due process of law; what that is, has been often defined, but never better than it was, both historically and critically, by Judge Curtis of the supreme court of the United States, in Murray v. Hoboken Land and Improvement Co., 18 How. 280; it ordinarily implies and includes a complainant, a defendant and a judge, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceeding.

It must be admitted, there are a few exceptional cases; prominent among these are summary proceedings to recover debts due to the government, especially taxes, and sums due by defaulting public officers. But I can call to mind no instance in which it has been held, that the ascertainment of guilt of a 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 particular case, administered by a judicial tribunal authorized to adjudicate upon it. And I cannot persuade myself, that a judge of elections, or a board of election officers constituted under state laws, is such a tribunal; I cannot think they have power to try criminal 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 is true, many things which they may determine, such as the age and residence of a person offering to vote, whether he has paid taxes, and whether, if born an alien, he has received a certificate of naturalization; these things pertain to the ascertainment of a political right. But whether he has been guilty of a criminal offence, and has, as a consequence, forfeited his right, is an inquiry of a different character; neither our constitution nor our law has conferred upon the judges of election any such judicial functions. They are not sworn to try issues in criminal cases; they have no power to compel the attendance of witnesses, and their judgment, if rendered, would be binding upon no other tribunal; even if they were to assume jurisdiction of the offence described in the act of congress, and proceed to try whether the applicant for a 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 citizenship, all this would not amount to an acquittal; it would not protect him against a subsequent similar accusation and trial, would not protect him against trial and punishment by a 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 a different tribunal, and to the imposition, by that other tribunal, of the full punishment prescribed by law.

Moreover, it is not in the power of congress to confer upon such a tribunal, which is exclusively of state creation, jurisdiction to try offences against the United States. Notwithstanding the decision in Buckwalter v. United States, 11 S. & R. 193, which was an action for penalties declared to be recoverable as other debts, the doctrine 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 v. Hunter, 1 Wheat. 304, 330; Ely v. Peck, 7 Conn. 242; and Scoville v. Canfield, 14 Johns. 338. And clearly, if this be so, congress cannot make a 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 3d March 1865 really contemplates the infliction of its prescribed penalty, or any part of it, without due process of law, or if it attempts to confer upon the election officers of a state, the power to determine whether there has been a violation 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 transgressive of the authority vested in congress by the constitution. But such is not the fair construction of the enactment. It is not to be presumed that congress intended to transgress its powers, and especially is this true, when the act admits of another construction entirely consistent with all the provisions of the constitution.

What, then, is its true meaning? As already observed, forfeiture of citizenship is prescribed as a penalty for desertion, an additional penalty, not for an offence committed before the passage of the act, but for continued desertion, and failure to return or report. It is not a new consequence of a penalty, but it is an integral part of the thing


itself; nor is it the whole; it is added to what the law had previously enacted to be the penalty of desertion, as imprisonment is sometimes added to punishment by fine. It must have been intended, therefore, that it should be incurred in the same way, and imposed by the same. tribunal that was authorized to impose the other penalties for the offence. It would be very absurd, to suppose that two trials and two condemnations for one crime were intended, or that it was designed that a criminal might be sentenced in one court to undergo a part of the punishment denounced by the law, and be punished in another court by the imposition of the remainder. The law, as it stood when the act of 1865 was passed, had provided a tribunal in which alone the crime of desertion could be tried, and by which alone the penalties for desertion could be inflicted. The consequences of conviction may be noticed in other courts, but the tribunal appointed by the law for that purpose is the only one that can determine whether the crime has been committed, and adjudge the punishment.

The act of 3d March 1865 is not to be considered apart from the other legislation respecting the crime of desertion; it is one of a series of acts pertaining to the same subject-matter; it must, therefore, be interpreted with them all in view; this is an admitted rule of statutory construction. So long ago as Rex v. Loxdale, 1 Burr. 447, Lord Mansfield said, when speaking of acts of parliament, that all which relate to the same subject, notwithstanding some of them may be expired, or not noticed, must be taken to be one system, and construed consistently. So, Chancellor Kent, in the first volume of his Commentaries, 463-4, said, "it is to be inferred, that a code of statutes relating to one subject, was governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions."

In looking through the numerous acts of congress relating to desertion from the military or naval service, it is

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