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plainly to be seen, that they all contemplate a regular trial and conviction prior to the infliction of any penalty; and courts-martial are constituted for such trials. The 20th article of war, enacted on the 10th April 1806 (1 Bright. Dig. 75), is in these words: "all officers and soldiers who have received pay, or have been duly enlisted in the service of the United States, and shall be convicted of having deserted the same, shall suffer death, or such other punishment as, by sentence of court-martial, shall be inflicted." Other enactments have been made, at different times, respecting the punishments to be inflicted for the offence; the punishment of death, in time of peace, was abolished in 1830; corporal punishment by stripes was abolished by the act of 16th May 1812; and by the act of 2d March 1833, that section of the repealing act was itself repealed, "so far as it applies to any enlisted soldiers who shall be convicted by a general court-martial of the crime of desertion." By the act of 11th January 1812, an additional penalty was prescribed for desertion, and it was declared, that each soldier "shall and may be tried by a court-martial and punished" (1 Bright. Dig. 89). The 13th section of the act of 3d March 1863, which declared that any person failing to report, after due service of notice that he had been drafted, shall be deemed a deserter, enacted that such a person "shall be arrested by the provost-marshal, and sent to the nearest military post for trial by court-martial, unless, upon proper showing that he is not liable to military duty, the board of enrolment shall relieve him from the draft."
All these acts of congress manifestly contemplate trial for desertion in courts-martial, and the infliction of no punishment or forfeiture, except upon conviction and sentence in such courts. The act of 1806 provided for general courts-martial, and made minute and careful regulations for their organization, for the conduct of their proceedings, and for the approval or disapproval of their sentences; subsequent acts made some changes, but they have not restrained the jurisdiction, nor diminished the powers of
such courts. It is to such a code of laws, forming a system devised for the punishment of desertion, that the 21st section of the act of 3d March 1865 was added; it refers plainly to pre-existing laws; it has the single object of increasing the penalties, but it does not undertake to change or dispense with the machinery provided for punishing the crime. The common rules of construction demand that it should be read as if it had been incorporated with the former acts. And if it had been, if the act of 1806 and its supplements had prescribed that the penalty for desertion, or failure to report within a designated time after notice of draft (which the act of 1865 declares desertion), should be punished, on conviction of the same, with forfeiture of citizenship and death, or, in lieu of the latter, such other punishment as, by the sentence of a courtmartial, may be inflicted, would any one contend, that any portion of this punishment could be inflicted, without conviction and sentence? Assuredly not; and if not, so must the act of 1865 be construed now. It means, that the forfeiture which it prescribes, like all other penalties for desertion, must be adjudged to the convicted person, after trial by a court-martial, and sentence approved; for the conviction and sentence of such a court there can be no substitute; they alone establish the guilt of the accused, and fasten upon him the legal consequences. Such, we think, is the true meaning of the act, a construction that cannot be denied to it, without losing sight of all the previous legislation respecting the same subject-matter, no part of which does this act profess to alter.
It may be added, that this construction is not only required by the universally-admitted rules of statutory interpretation, but it is in harmony with the personal rights secured by the constitution, and which congress must be presumed to have kept in view. It gives to the accused a trial before sworn judges, a right to challenge, an opportunity of defence, the privilege of hearing the witnesses against him, and of calling witnesses in his behalf;
it preserves to him the common-law presumption of innocence, until he has been adjudged guilty according to the forms of law; it gives finality to a single trial; if tried by a court-martial and acquitted, his innocence can never again be called in question, and he can be made to suffer no part of the penalties prescribed for guilt. On the other hand, if a record of conviction by a lawful court be not a prerequisite to suffering the penalty of the law, the act of congress may work intolerable hardships; the accused will then be obliged to prove his innocence whenever the registry of the provost-marshal is adduced against him; no decision of a board of election officers will protect him against the necessity of renewing his defence at every subsequent election, and each time, with increased difficulty, arising from the possible death or absence of witnesses. In many cases this may prove a gross wrong; it cannot be doubted, that in some instances, there were causes that prevented a return to service, or a report, by persons registered as deserters by provost-marshals, that would have been held justifying reasons by a court-martial, or, at least, would have prevented an approval of the court's sentence. It is well known, also, that some who were registered deserters were, at the time, actually in the military service as volunteers, and honorably discharging their duties to the government; to hold that the act of congress imposes upon such the necessity of proving their innocence, without any conviction of guilt, would be an unreasonable construction of the act, and would be attributing to the national legislature an intention not warranted by the language and connection of the enactment.
It follows, that the judgment of the court below, upon the case stated, was right; the plaintiff, not having been convicted of desertion and failure to return to the service, or to report to a provost-marshal, and not having been sentenced to the penalties and forfeitures of the law, was entitled to vote.
WOODWARD, C. J. I concur in the conclusion stated in the above opinion, and in most of the reasonings by which that conclusion is reached. But I do not concur in treating the act of congress as a valid enactment; for I believe it to be an ex post facto law, in respect to all soldiers, except such as commit the crime of desertion after the date of the law. This is not a case of desertion subsequent to the enactment, but prior to it, and the penalties of the offence are such as were fixed by law when it was committed, and it is not competent for the legislature to increase them, except for future cases.
READ, J., and AGNEW, J., dissented.
The punishment of disfranchisement is not a cruel and unusual one; and it is competent for the legislature, unless restrained by the state constitution, to inflict it as a penalty for crime. But where the constitution provides that laws may be passed, excluding from the right of suffrage, persons who have been or may be convicted of infamous crimes; it would seem, that it is not in the power of the legislature to inflict this penalty for any other than infamous offences, which are treason, felony and every species of the crimen falsi, such as perjury, conspiracy and barratry. This definition does not include the offence of duelling. Barker v. People, 20 Johns. 457.
After the decision in Huber v. Reily, the legislature of Pennsylvania passed the act of 4th June 1866, disqualifying deserters from the military service of the United States from exercising the right of suffrage; but the supreme court declared this act to be unconstitutional, on the ground that one who was a qualified elector, under the constitution, could not be deprived of the elective franchise, by a legislative enactment. McCafferty v. Guyer, 59 Penn. St. R. 109 (ante 44). The point decided in Huber v. Reily, has recently been affirmed by the supreme judicial court of Maine, in State v. Symonds, 57 Maine 148. In that case, Dickerson, J., said: "If this act of congress undertook to prescribe the qualifications of electors in the states, it would be unconstitutional; since, under the
constitution of the United States, that prerogative is reserved to the states; but it attempts no such thing, the object of the section in question being to prevent the offence of desertion, by depriving the offender of his rights as a citizen of the United States. It is clearly within the constitutional province of the legislative department of the national government, to define and prescribe the rights of citizenship of the United States, and to declare their forfeiture, as a penalty for deserting the army, in a death-struggle of the government for the preservation of its nationality. When a person has forfeited his rights of citizenship under this act, he loses his right of suffrage, only when this right, under the constitution of the state to which he belongs, is restricted to citizens of the United States; thus, while congress cannot directly deprive a citizen of the right of suffrage, it may deprive him of other rights upon which the right of suffrage may depend; it may incapacitate him from exercising the right of suffrage, but it cannot deprive him of the right itself; the act of congress in question goes to this extent, and no further. In this state, none but citizens of the United States can exercise the elective franchise; to deprive citizens of this state, therefore, of their rights as citizens of the United States, is, in effect, to deprive them of the capacity to exercise the right of suffrage." "The crime of deserting the army of the United States is exclusively an offence against the government of the United States, and can only be inquired into and punished through the courts of the United States having jurisdiction thereof; any adjudication upon this offence, by a state tribunal, would be coram non judice; its decision would afford the accused no security whatever from another trial before another tribunal. Courts-martial of the United States have exclusive jurisdiction of this offence, and it is only after trial, conviction and sentence by such court, and the approval of the same by the proper authority, that a citizen of this state can be deprived of the right of suffrage, or any right of citizenship, under the act of congress in question. The record of such conviction is the only legal evidence of the fact of desertion, before any tribunal where this is brought in question." And see, to the same point, Gotcheus v. Matheson, 58 Barb. 152.
That it is in the power of a state to disfranchise a portion of its citizens, for rebellion or other crime, when not restrained by the state constitution, was decided in Ridley v. Sherbrook, 3 Cold. 569; and Anderson v. Baker, 23 Md. 531 (ante 27). The elective franchise is not an inalienable right or privilege, but a political right, conferred, limited or withheld at the