Franklin Repository: July 04, 1866Go To Page : 1 | 2 | 3 | 4 |
The Disfranchisement of Deserters Is The Act Of Congress Constitutional? The Case Of Reilly vs. Huber.* In The Supreme Court Of Pennsylvania. Argument Of A. K. M'Clure.
(Column 3)Summary: A transcript of A. K. McClure's argument in the controversial Reilly vs. Huber case, in which McClure represented the state. The case concerns the constitutionality of the law disfranchising deserters.
Full Text of Article:
[Phonographically reported by L. Stroup, Esq.]
May it Please the Court:--I shall not devote any part of my argument to the second point raised in the paper book of the Defendant in error. I do not apprehend that this learned court can decide the act of Congress disfranchising deserters to be an ex post facto law. Henry Reilly was regularly drafted on the 19th of July, 1864, and was by the express terms of the act of Congress, subject to the rules and regulations governing persons in the military service from that date. He was a deserter from the day he was required to report, and persisted in the crime of desertion every day and hour thereafter. On the 3d of March, 1865, Congress authorized the President to relieve him from the penalty--which might be death--by proclamation, if he should return within a specified time and discharge the manifest duty he owed to the government, and the same act provided that if he should "not return to said service" within the period named, for thus repeating and persisting in the crime of desertion, and rejecting the proffered pardon of the government, it pronounces upon him the fearful but just judgement that he "shall be deemed and taken to have voluntarily relinquished and forfeited" his great birth-right of citizenship. If he offended by refusing to report originally, surely he much more offended when he repeated the refusal in the face of pardon tendered for the past.
STRONG J.--Does the case stated show that there was a proclamation?
MR. McCLURE--It does not.
REED J.--I suppose that this court can take notice of that.
MR. McCLURE--I think the court should take notice of a public proclamation of the President, made in pursuance of law, as they would of the law itself.
The government of the United States is one of limited powers, derived directly from the fountain of all power--the People. Our organic law is ordained in their name, and its purposes are declared with marked distinctness in the preamble. In delegating powers to the general government, they made express reservations, and reversed the rule that obtained in the Articles of Confederation, reserving to the States limitations in the exercise of the powers delegated.
I apprehend that there is no term that is so widely misunderstood and so erroneously applied, as the term "limited powers" in its application to our government. For three quarters of a century our history was unmarked by any great test of the powers of the national authority, and the popular fallacy that our nationality was limited even in its powers of self-preservation, had during that time been solemnized by partizan deliverances, maintained by some of our ablest statesmen who looked to our ultimate dismemberment, and entered into the education of those who were in time to become the makers and expounders of our laws.
While it is confessed by all that the powers of the general government are limited, it is equally true that they are not limited in any sense, where they are delegated either expressly or by implication, excepting the natural and proper limitations which forbid the exercise of any power under the constitution to invade any right or reservation of the same instrument. It stands as a monument of the sublimest wisdom. It is in all things consistent with itself, and its symmetry is but perfected in its administration. A careful study of the well considered language of the constitution, of the exercise of the delegated powers, and the uniform manner of their construction by the judicial and other departments of the government, consistently define the limitation of powers as distinguishing merely between the delegated and the reserved, and not in the exercise of powers delegated.
When the people created a nationality for themselves and their posterity, they well understood the magnitude of their task. They had been tossed in the violent throes of revolution. They had experienced the want of a national sovereignty, not only before the adoption of articles of confederation, but equally so thereafter. They had no nationality. Their confederation but relieved the States of certain important and delicate powers, and yet left with the States the power to defeat the exercise of them. They therefore ordained the organic law in order to invest their nationality with every essential attribute of sovereignty.
If we turn to the first step taken in framing the articles of confederation and from thence to the first step taken in framing the constitution, we can at once see the supreme necessity that fashioned the very foundation stone of our national structure. In forming the confederation, in 1778, the first article defining powers declares that "each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation, expressly delegated to the United States in Congress assembled:" and throughout all the articles the most scrupulous care is manifested to guard against the exercise of supreme or questionable powers by the general government. But when the constitution was framed, the want of supreme power in the national government had been learned by bitter experience--by the difficulties in raising armies and maintaining credit more particularly--and the first article vests all legislature powers in Congress. Another article defines specific powers, including the right to raise and support armies, and closes with a sweeping delegation of power to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers." And lest some constitutional quibbler should not learn of the failure of limited powers, in the exercise of delegated authority, under the confederation, and attempt to defeat the purpose of the constitution by the pernicious doctrine of the supreme sovereignty of the States, the concluding article provides that "this constitution and the laws of the United States which shall be made in pursuance thereof, * * * shall be the supreme law of the land, AND THE JUDGES IN EVERY STATE SHALL BE BOUND THEREBY, anything in the constitution or laws of any such State to the contrary notwithstanding!"
Had my learned friend (Mr. Sharpe) been living under the articles of confederation, instead of the more enlightened provisions of the constitution, his arguments would have been in happy accord with the fundamental law; but the nation has moved on from the feeble infancy of the confederation to the full manhood of a mighty nationality, supreme in its powers, perfect in its attributes of sovereignty, and empowered to give complete effect to all its lawful mandates. The confederation was but a national suicide. Its powers were but the instruments of death in time of peril. It was powerless to maintain its own existence. It could demand and apportion revenues, but could not enforce collection. It was therefore bankrupt. It could declare war, but could not compel military service from the people. It could define offences and penalties, but could not carry its laws into operation. It had no coercive authority. It could not legislate directly upon persons, and many of its enactments were silently disregarded, others were slowly and reluctantly obeyed, and still others were openly nullified. It was, therefore, the wisdom gathered by the saddest experience--an experience that well nigh lost the cause of Independence for want of power to fill the shattered ranks of the patriots, and which left the confederation at the close of the war without even the semblance of credit, for want of power to enforce the collection of revenue--that dictated the enlarged powers to the general government, and unlimited authority in the exercise of any delegated power, under the constitution. In short, from a mere confederation created to serve the necessities of a revolution, the master-piece of Independence was left to be perfected after the trials of war, by the creation of our constitution; and the controlling purpose of its framers was to found a nationality that could, by the exercise of its legitimate and lawful authority, defy domestic and foreign foes, and maintain its own existence and the unity of the States and territory committed to its supreme guardianship.
Let us turn to the great chart of our liberties as created by the fathers of the Republic, and see how they conferred the attribute of sovereignty upon the general government. In words as brief as they are sublime, the preamble tells the whole story of the want of a supreme nationality. It says:--"We, the People of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." Their Union had been imperfect, because the States possessed, under the confederation, a sovereignty to which the confederation was subordinated. They, therefore, declared "a more perfect Union" as the first object of the constitution, and after the establishment of justice, to "insure domestic tranquility" was deemed the next important duty. Discord had prevailed throughout the States under the confederation, because each was the arbiter of its own rights and wrongs, and prejudice and interest were ever at war with the common welfare. Instead of starting out with the reserved rights of States and the confession of their sovereignty, as did the articles of confederation, they vested "all legislative powers herein granted" in Congress. Instead of restrictions being the rule as in the confederation, they are the exception. After plenary powers are conferred to maintain a nationality, we find certain limitations imposed upon Congress, but they do not apply to the exercise of any authority delegated, and they are immediately followed with like restrictions upon the States. One supreme authority is created. No State is recognized as a sovereignty in the sense that it would allow it to question the paramount authority of the general government, in the exercise, in its own way under the constitution, of its supreme governmental power.
Congress is expressly empowered to levy and collect taxes, to borrow money, to regulate commerce, to coin money and provide for the punishment of counterfeiters, to declare war, to raise and support armies, to provide and maintain a navy, to make rules for the government and regulation of the land and naval forces, and finally, to avoid all possible misunderstanding, Congress is authorized "TO MAKE ALL LAWS WHICH SHALL BE NECESSARY and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof."
Next we have restrictions upon the powers of Congress, but they do not relate to the powers conferred. They relate to immigration, the writ of habeas corpus, ex post facto legislation, taxation, the use of the public monies and titles of nobility. Then follow restrictions upon the States, which divest them of every attribute of sovereignty that is essential to the national government. When the structure of the constitution was reared, which had thus delegated powers to Congress--first specially and then by general and unlimited authority to pass all necessary laws to carry them into effect, so careful were the authors lest the dregs of the confederation might interpose to restrict and cripple it, that the constitution and the laws made in pursuance thereof, are declared "the supreme law of the land, and the judges of every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Even the express reservation to the States, or the people, of powers not delegated to the government, appears in an amendment, which does not limit any power of the general government, or lead to any other than the natural construction that would have been given had the section not been inserted. But the reservation embraces only powers not delegated, expressly or by implication, while the articles of confederation, reserved all powers not "expressly delegated."
The power of Congress "to raise and support armies" has but a single express limitation, and that prevents the appropriation of money to support armies "for a longer term than two years." This is a wise restriction. The appropriation of the public money must originate in the popular branch of Congress, and that is chosen every two years. The people have, therefore, reserved to themselves the right to review the war making power at every Congressional election, and arrest war by electing members who will refuse the necessary appropriations, if the war does not meet their approval. But beyond this limitation, the exclusive power to raise armies is vested in Congress, and there can be no unwarrantable exercise of power in the premises unless some other provision of the constitution is violated.
Because for three quarters of a century this government has never had occasion to exercise its extreme powers, it is no reason why we should hesitate to sanction them. The life of the government has never been periled until the late rebellion aimed to dismember the Union by the sword. We have had profound peace ever since the establishment of the government, with the exception of a few years of war with England in 1812 and Mexico in 1846, neither of which so taxed the resources of the nation as to call for the exercise of extraordinary powers. It is not unnatural, therefore, that when the government is compelled in self defence to call into requisition its full powers, many should question its authority. The experience of the past, and to some extent the teachings of the present, led to such conclusions. The men who conceived and inaugurated the rebellion had for years sought to limit the powers of the government, by insisting upon constructions of our organic law which would make it but an instrument of death. Many honestly followed them, and all who sympathized in any degree with their purposes gave a ready assent. A liberal and just construction, being without precedent, because the extremity of the government was without precedent, was readily antagonized by the treacherous, the cowardly, the venal and the weak; but when the law-making power of the nation was called upon to act for the safety of the Republic, it assumed that it had power to raise armies, and legislated so as to exercise its power.
The power to raise armies cannot admit of limitation short of some positive restrictions of the constitution itself. How Congress shall raise armies, is left for Congress to decide. It is expressly empowered "to make all laws necessary" to do so. It surely will not be insisted that, when treason was assailing the life of the nation, Congress could provide for raising volunteers or conscripting men, and be powerless to enforce obedience to its call. To raise armies means more than to call for a given number of troops. Quotas on paper will not defend a nation against a desperate foe in the field, armed, disciplined and attacking the government and its people with murderous purpose. The men must not only be called, but they must be had. Congress must not only ask them to come, but it must coerce those who refuse to come, and if it cannot do it in one way, it must do it in another way. If it cannot enforce obedience by courts-martial it must do it in some more summary manner. It is expressly authorized "to make rules for the government and regulation of the land and naval forces," and it is no longer a question that the government may hold a man as in the military service as soon as he is drafted. It was held by Judge Washington in the case of Houston vs Moore, 5th Wheaton, that it is competent for Congress to declare men to be in the service as soon as they are drafted, and the act of Congress does so declare them. This learned court has therefore to deal with Henry Reilly in the case before it, as a man in the military service of the government, and subject to the rules and regulations prescribed by Congress for the government of the military forces of the country. The fact that it involves the political franchise of thirty thousand men who have been citizens of Pennsylvania, as is stated by the gentleman who preceded me, (Mr. Sharpe) so far from requiring the court to hesitate to enforce the penalty imposed by Congress, should rather demand of the courts to seek earnestly for powers within the government, to teach faithless citizens the fundamental doctrine so well expressed by Blackstone, that "allegiance is the tie or ligament which binds every subject to be true and faithful to his sovereign, in return for protection which is afforded him." Had there been thrice thirty thousand deserters in Pennsylvania instead of thirty thousand, we should in all probability be without government, liberty or law to-day; and if thirty thousand can with impunity refuse allegiance in the hour of peril to our common institutions, certainly any indefinite number might do the same. Mr. Sharpe did well to render thanks to the God of battles for victory and peace, when pleading for the escape of a skulking deserter, for he could not thank the men whose cause he represents with so much earnestness and ability for the civil and religious blessings we all enjoy.
The power of Congress to raise and support armies having been derived from and delegated by the people, let us inquire under what circumstances they gave the power, and also how they exercised the same power themselves. I have already referred to the articles of confederation, and their failure to meet the necessities of the government. Had they been stringent and centralizing in their aim, as might have been reasonably the case considering they were created in the midst of civil war, and the constitution which followed, been a change from the centralizing to the Democratic policy, I might be unable to demonstrate so clearly the plenary powers conferred on Congress. But just the reverse is the truth of history. In war the people of the revolution tested a government of limited powers--I mean limited powers to exercise its authority expressly delegated, and they were more than satisfied with the experiment. They met after peace and independence had been won, and declared it necessary "to form a more perfect union, establish justice, insure domestic tranquility," &c., by withdrawing the limitations upon the general government and clothing it with supreme authority in all things pertaining to nationality. They had exercised the power to raise and support armies themselves. They had just passed through seven years of fearful war. They had suffered every exaction its grim visage could frown upon them. They had felt the horrors of conscription--
WOODWARD C. J.--We never had any conscription law in this country.
MR. M'CLURE--If that be true, then the people conscripted themselves without law. There was no general government empowered to make such a law, but conscription was nevertheless enforced.
STRONG J.--We had a government, a confederacy, but it was only advisory.
WOODWARD C. J.--There certainly was no draft in the war of 1812.
MR. M'CLURE--Certainly there were drafts made both during the revolution and the war of 1812, but they were made by the States. The government never was authorized by Congress to draft until 1863. In 1812 the government called upon the States for their quotas, to be filled by volunteers or by draft as the States might elect.
WOODWARD C. J.--Yes, in 1812; but I think no State ever drafted.
THOMPSON J.--There was no Federal draft, but there were State drafts in 1812.
[MR. CESSNA here handed the court an original copy of a call for volunteers by Gov. Snyder, during the war of 1812, which ordered a draft for such counties as should fail to fill their quotas within a specified time.]
MR. M'CLURE--We get the policy of conscription from the people themselves.
WOODWARD C. J.--How is that?
MR. M'CLURE--The people did not part with the power to raise armies by the articles of confederation, and it was therefore reserved to themselves. Congress was empowered only "to agree upon the number of land forces, and to make requisition upon each State for its quotas." How the requisitions should be filled, was for the people, in the exercise of their reserved powers to determine, and they, in several instances, resorted to conscription. After conscripting themselves in the exercise of the power to raise armies, they delegated the power to Congress under the constitution, without any limitation.
WOODWARD C. J.--That is all in a circle. It is not certain that the people delegated the power to conscript.
MR. M'CLURE--They did not in express terms, but they raised armies in that way when the power belonged to them--enforced conscription upon themselves--and while conscription and war were still fresh in their recollections, they parted with the entire power to raise armies without reserving any rights.
WOODWARD C. J.--Having the power to conscript themselves, and having delegated certain powers to the general government, does it necessarily follow that they delegated the power to conscript? The power in the people is not the point in the controversy.
MR. M'CLURE--I regret that the learned Chief Justice does not understand me as I desire to make myself understood. Your Honor will not deny that originally all power was in the people themselves. In framing the articles of confederation, they parted with but a portion of their powers, gave no unlimited powers to Congress even in the exercise of delegated authority, and expressly reserved to themselves all powers not in terms delegated. The confederacy fixed quotas and called upon the States for troops; the power to raise armies being then in the people and not in the general government. The people, therefore, adopted such measures as they deemed proper to raise armies, and one mode they enforced was the draft upon themselves. Thus did they exercise the power to raise armies. Immediately after the war, they parted with the power to raise armies--they delegated it to Congress without prescribing how it should be exercised, or forbidding the use of any means Congress might deem essential to carry it into effect. They had just experienced conscription, and they authorized Congress to exercise the very powers they had enforced by conscription.
STRONG J.--I scarcely think that all this is relevant to the question at issue.
MR. M'CLURE--I submit that the question has been raised by the court, and I certainly have no desire to pursue it. It seems to me needless to discuss the constitutional power of the government to raise armies by conscription, when this court had already offered the constitutionality of the conscription law of March 3, 1863, in the case of Kneedler vs Lane.
WOODWARD C. J.--The constitutionality of the conscription law was never affirmed by this court.
MR. M'CLURE--I have before me what purports to be the opinion of this court, in Kneedler vs Lane, 9th Wright, 295, by which final judgement was rendered, and it affirms the constitutionality of the conscription law in the clearest terms.
REED J.--This court did certainly assert the constitutionality of the conscription law.
WOODWARD C. J.--On the contrary it has decided it unconstitutional in regular form.**
STRONG J.--This court has certainly decided that the conscription law is constitutional, Mr. McClure, and you can proceed with your argument.
MR. M'CLURE--But let us follow the people a step farther in the exercise of the power to raise armies. They not only called men into the service by conscription, but they proscribed them as aliens for not responding to the call of the country. This they did in many, and perhaps a majority, of the States. Indeed I believe that there was not a single State that did not pass laws of some kind forfeiting either citizenship or property, or both, for refusal to aid the country in war. Even after the war South Carolina and Georgia passed laws forever disfranchising those who had refused to join in the revolution. In a majority of the States these laws were enforced long after the adoption of the constitution. In some States they required trial and conviction precedent to forfeiture of property and citizenship. In other States they disfranchised by laws proscribing them for treason without trial, and in others they allowed trial in some cases and in others refused it. After the adoption of the constitution, Massachusetts passed a law disfranchising for a term of years, and in some instances for life, those who had participated in Shay's rebellion. They did not require trial, but their guilt was a matter of proof when the ballot was offered.
Pennsylvania, too, has no doubtful record as to the manner in which the people, in the exercise of the power to raise armies, enforced obedience to their mandates. On the 8th of May, 1778, the Supreme Executive Council--the body of delegates through which the people governed themselves--passed "an act for the attainder of divers traitors," (those who refused military service in the war against the King) requiring certain persons to report themselves for trial on or before the 25th of June next ensuing, "on pain that every of them stand and be attainted of high treason to all intents and purposes, and shall suffer such pains and penalties, and undergo all such forfeitures, as persons attainted of high treason ought to do." In pursuance of this law, the Council made public proclamations, and those who failed to comply with the provisions of the law, forfeited citizenship forever and their property was confiscated. Registers were appointed to keep a record of traitors and their estates, and rewards were paid for discovering forfeited estates. To this day we have preserved, as a monument of the stern patriotism of our forefathers in Pennsylvania, the list of hundreds of men whose names come down to us, as Henry Reilly's appears to-day, branded with the infamy of deserting the cause of a common inheritance.
Nor was the lawfulness of this legislation questioned any more than were its wisdom and justice. The general government in its legislation after the adoption of the constitution, scrupulously referenced this proscription of faithless men. In 1790, Congress passed an act to establish a uniform rule of naturalization, and lest it should, in the exercise of its supreme power, relieve the men who had deserted in the revolution, it concludes with the proviso--"that no person heretofore proscribed by any State, shall be admitted a citizen as aforesaid, except by an act of the legislature of the State in which such person was proscribed." This law was passed by the men who had either framed the constitution, or who had witnessed its birth with the profoundest interest, and well understood its meaning, and it was approved by the great hero-statesmen who had presided over the deliberations of the convention--the immortal Washington. It was manifest that an act of Congress relieving them of the pains and penalties enforced by the States would, in their judgement, have been the supreme law of the land, any acts of the States to the contrary notwithstanding, but Congress expressly gave its sanction to the forfeitures and left it to the States, by explicit proviso, to say when they should become citizens of the United States. But in this act Congress had not gone far enough. It only excluded from citizenship those who have been proscribed by the States, while it restored to citizenship those who had been convicted of refusing service to the country and their citizenship and property thereby forfeited. Congress had, therefore, by the supreme law of the land, yet manifestly by inadvertance, restored to their civil rights certain persons who had been convicted by the States before the adoption of the constitution, and made aliens of those who had been proscribed. Accordingly on the 14th of April, 1802, Thomas Jefferson, the father of the Democratic tendencies of our government, signed a bill relating to naturalization and citizenship, concluding with this proviso:--"That no person heretofore proscribed, by any State, or who has been legally convicted of having joined the army of Great Britain during the late war, shall be admitted a citizen as aforesaid, without the consent of the legislature of the State in which such person was proscribed." This act perfected the work of justice as the people had ordained when they had the power, and Congress thus placed the high seal of the supreme law of the land upon the forfeiture of citizenship and property, both by proscription and conviction, and the deserters of the revolution were made aliens, strangers and wanderers in their own land, without franchise, property, or power, and they had to brave the scorn of the people who had won liberty, until they found refuge in the grave.
STRONG J.--The constitution acknowledges the existence of States. It is the creation of the people. Is it not essential to the existence of States that the State governments themselves shall have the power to determine who shall, and who shall not vote? And when Congress says who shall not vote, is it not invading the rights of the States?
MR. M'CLURE--Yes, sir, I accept both propositions as stated by your Honor. I will, at the proper time, show that the act of Congress disfranchising deserters is not on conflict with the laws of Pennsylvania regulating suffrage. It transgresses upon no State privilege. I do not propose to claim that Congress may regulate suffrage in the States, but regulating suffrage and forfeiting citizenship as a penalty for crime, by the power that creates citizenship, are two very distinct propositions. Pennsylvania confers the right of suffrage only on those who are, by the supreme law, made citizens of the United States. But I will notice this point more fully hereafter.
I have shown how the power to raise armies was exercised by the people, especially in our own State, where enforcement of the demand for military service was carried to the forfeiture of citizenship and property by proscription. Even the corruption of blood was effected by proscription in Pennsylvania, and the limitation of appropriations to two years for war purposes, and the denial of the corruption of blood by attainder of treason, are the only express restrictions imposed upon their own policy when they transferred their power to Congress.
Having traced this power to raise armies, and the manner of its exercise, from its fountain, I now propose to inquire how it has been construed by the judicial tribunals of the government since it has been delegated to Congress.
It is the doctrine of the most eminent expounders of the constitution that "whenever the end is required, the means are authorized; whenever a general power to do a thing is given, every particular power for doing it is included." Story refers to the power of Congress in the following clear and pointed terms:
"To establish a National Government, and to affirm that it shall have certain powers, and yet that in the exercise of those powers it shall not be supreme, but controlled by any State in the Union, would be a solecism so mischievous and so indefensible, that the scheme could never be attributed to the framers of the constitution, without manifestly impeaching their wisdom as well as their good faith. The want of such an effective practical supremacy was a vital defect in the Confederation, and furnished the most solid reasons for abolishing it. It would be an idle mockery to give powers to Congress, and yet at the same time declare that those powers might be suspended or annihilated at the will of a single State; that the will of twenty-five States should be surrendered to the will of one. A government of such a nature would be as unworthy of public confidence, as it would be incapable of affording public protection or private happiness."--Story on the Constitution, 249.
What is proposed here by the defendant in error, but that the power of Congress to raise armies shall be "annihilated at the will of a single State?" This learned court is asked to sanction the mischievous and indefensible solecism, that while Congress has the power to raise armies, yet in the exercise of that power it is controllable by Pennsylvania. And why? Because, forsooth, it disfranchises a deserter; because it takes at his own word one who disowns his citizenship and allegiance.
In the case of Strugess vs. Crowinshield, 4th Wheaton, 193, the Supreme Court of the United States held that--
"Whenever the terms on which a power is granted by the constitution to Congress, or whenever the nature of the power itself requires that it should be exercised exclusively by Congress, the subject is as completely taken away from the State legislatures as if they had been expressly forbidden to act on it."
If the legislature cannot interpose to limit the action of Congress, on any particular subject, surely the courts of the State cannot do so; and it will not be doubted that the power to raise armies is not only given to Congress in terms, but it is a power the nature of which requires that it must be exercised exclusively by Congress. If it cannot be so exercised, it would be no power at all, for every State that chose to cripple the government in time of peril, could find some pretext for doing it, and the nation would be at the mercy of any single State.
The same court also held in the case of McCulloch vs State of Maryland, 4th Wheaton, 421, that--
If a certain means to carry into effect any of the powers expressly given by the constitution to the government of the Union, be an appropriate measure, not prohibited by the constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance."
Again, in the same case and same page it is held that--
"If the end be legitimate, and within the scope of the constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may be constitutionally employed to carry it into effect."
That the end to be attained by the act of Congress imposing the penalty of disfranchisement upon deserters, is legitimate and within the scope of the constitution, will not be questioned, and unless the means employed are plainly prohibited, they must stand the test of judicial scrutiny. Of their necessity Congress is the sole judge--it is "a question of legislative discretion," says the Supreme Court of the United States, and this learned court must have the clearest evidence that the exercise of this power, in the particular manner in which Congress has seen fit to exercise it, is flagrantly at war with the constitution itself before it can question the validity of the law. Even if it were an issue in which there is concurrent authority in the general and State governments, so far as the action of the two conflict, the State must yield to the paramount authority of the general government. In Houston vs Moore, 5th Wheaton, 49, the Supreme Court of the United States held as follows:--
"But in cases of concurrent authority, where the laws of the States and of the Union are in direct and manifest collision on the same subject, those of the Union being the supreme law of the land, are of paramount authority, and the State so far, and so far only as such incompatibility exists, must necessarily yield."
In support of the position I have assumed, I need not go beyond the decisions of this learned court. In the case of Moore vs Houston 3d S. and R. 190, the late Chief Justice Gibson said--
"If the act upon which this proceeding is founded, is in collision with any act of Congress, it is void. The 6th article and 2nd section of the constitution of the United States declares that the constitution and the laws are made pursuant to it, to be the supreme law of the land, binding upon the Judges of the State Courts, notwithstanding anything to the contrary in the Constitution or laws of any State. It follows, that where an act of Congress, and an act of the State Legislature, come in conflict, the latter must give way. A refusal by the State authorities to execute an act of Congress in preference to their own law, would be a step toward the dissolution of the Union."
I have referred to these authorities not to establish the power of Congress, but to demonstrate in what manner and to what extent a particular power may be exercised by Congress when it is admitted to be delegated. The power to raise armies is not questioned, nor is it disputed that in the exercise of that power Congress is the sole judge of the necessity of legislation, and can be restrained only because of an infraction of the constitution itself.
But it is answered by the able counsel for the defendant in error, that the act of Congress "proposes to inflict and impose pains and penalties upon offenders, before and without trial and conviction by due process of law, and therefore is in direct antagonism to the bill of rights."
I am discussing the grave issues involved in this case with a just appreciation of the fact that ours is a government of law, and no supreme necessity can justify its violation. If Henry Reilly is not condemned by the law, he cannot be condemned at all. But he is condemned by the law unless the law forbids, in the clearest terms, that he should be condemned as Congress has condemned him. The restriction must not be by implication. It must be explicit and expressed. Is the penalty imposed by the act of Congress in this case thus confronted by the constitution? If so, we have as yet failed to find it, unless the construction put upon certain clauses of that instrument by the opposing counsel is to be accepted as the constitution itself.
If the constitution had provided that no citizen should be deprived of life, liberty or property unless convicted by a jury of his peers, the act of Congress would be at war with the bill of rights, and would necessarily fall before the supreme restriction of the fundamental law. But it does not thus provide, nor does it provide anything approaching it in cases such as the one before this learned court. It does not merely omit to make such provision, but it makes a very different provision--one in language well considered and designed to guard in the clearest terms against just such a construction as that given by the counsel on the other side. The constitution says:
"No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or an 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 he 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; nor shall private property be taken for public use without just compensation."
This is the only article of the constitution that refers to the punishment of capital or other infamous offences in the land and naval forces, and it refers to such cases only to except them from the process of law expressly provided for those not in the military service. Mark how carefully the distinction is made, and then follow it to the succeeding section where it is provided that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed." Citizens, under ordinary circumstances are entitled to speedy and public trial by an impartial jury. In such cases, such trial only would be "due process of law," but those who are in "the land or naval forces," are, in express terms, excepted from these guaranteed rights."
What then, is "due process of law" in the land and naval forces of the nation? The constitution omits to define it, and the omission was clearly intentional on the part of those who framed it. I have heretofore shown that Mr. Reilly was in the land forces of the government. The law expressly so declares, and the right of Congress to do so has been judicially determined. Mr. Reilly is therefore subject to the rules and articles of war, which are but a series of Congressional enactments, or rules and decisions founded thereon. There is no constitutional restriction whatever. For the offense he has committed, as confessed by the record before the court, he might have been pursued, arrested, tried by a drum-head court, condemned and executed. Such a proceeding would have been "due process of law." The right of all governments to inflict the death penalty for violation of military rules and regulations, has never been questioned, and desertion is one of the offences for which life is often forfeited. But when life should be taken, no code of laws, and no provision of the constitution, could properly determine. The power to enforce obedience, maintain safety and achieve success in military operations must be plenary, and at times, when important or perilous movements are being made, or about to be made, life will be taken for an offence which under ordinary circumstances would be punished but moderately or perhaps entirely overlooked. Due process of law, therefore, in regulating armies, is dictated by the necessities of the service, and when power is conceded to take life, it seems to me that power to impose the lesser penalty cannot be disputed.
But, it is argued, that penalties are imposed in the military service only after trial--that there must be some sort of trial and conviction. It is not necessarily so. Mr. Reilly could have had a trial at any time, but he elected not to be tried, because he was confessedly guilty. He had no defence, as the record here shows. He could have reported at any time to the nearest Provost Marshal, and demanded trial. He had been offered pardon if he would return, but he rejected it, and after he had thus forfeited the forgiveness of the government to which he owed allegiance and service, he could have returned at any time, suffered such penalty as might have been inflicted, procured his discharge at the close of the war, and now be entitled to all the rights of citizenship. But with the full knowledge of the fact that continued desertion forfeited his citizenship he elected to become an alien and not to be tried by any tribunal.
WOODWARD C. J.--I do not understand what you mean by "elected."
MR. M'CLURE--He could have reported at any time and demanded trial. Had he been arrested he would have been tried. He therefore elected to become and alien by the rules and regulations governing the army--the act of Congress in question being but a part of the rules and articles of war--rather than report for trial and service.
WOODWARD C. J.--This penalty was not provided until after his desertion.
MR. M'CLURE--That is true, but he persisted in his desertion every day he remained, and he was no less guilty every day he continued as a deserter, than the day he deserted.
[The proclamation of the President was here read to the court by Mr. Cessna, in answer to an inquiry for it by the court.]
Some months after he had deserted, he was offered pardon if he would return to service within sixty days. He was ordered to return, by the highest military authority, and he was bound to obey, but he disobeyed, repeated the crime of desertion, and persisted in the crime every day and hour he skulked away from the service.
Due process of law in this case is the law of the land. "The words 'due process of law,'" says the Supreme Court of the United States, 18th Howard, 276, "were undoubtedly intended to convey the same meaning as the words 'by the law of the land' in Magna Charta. Lord Coke in his commentary on these words (2 Just. 50) says they mean due process of law." If a forbidden mode of determining guilt was adopted by the act of Congress, then it would not be the law of the land, for it would be at variance with the law; but the constitution disposes of the whole question by authorizing Congress "to make rules for the government and regulation of the land and naval forces." It is empowered to govern them, because it is a supreme necessity, and its rules must be obeyed. If disregarded, it must be able to enforce obedience, and may punish even unto death for disobedience. Upon this sweeping delegation of power--as absolute as it is essential--there is no limitation, expressed or implied. Its law is therefore the law of the land. It is expressly excepted from the narrow channels marked out for civil authority by the bill of rights, and imposes its penalties in its own way and from its judgement there is no appeal.
Nor is it so violent an innovation upon the rules which obtain at times in the civil tribunals of the country. It is charged as a monstrous abuse of power to entrust an election officer with the decision of the grave question whether a man is disfranchised or not. There is, indeed, nothing startling in that. Considering that election boards have exercised that power unquestioned from time immemorial, my learned friend who proceeded me, (Mr. Sharpe) need not have been so much shocked at the mere proposition to allow election officers to accept or reject a vote. If he and I should make a wager on an election, and his vote should be challenged, who would determine whether or not he had, by his own act, disfranchised himself? He would not question the right of the board to reject his vote.
THOMPSON J.--That law is unconstitutional.
READ J.--It is certainly good morals.
MR. M'CLURE--It has never been impeached, and it is therefore the law of the State.
THOMPSON J.--An unconstitutional act cannot be the law.
MR. M'CLURE--No court has ever declared it unconstitutional. Should an election board do so? If they cannot decide the question of citizenship, can they determine the validity of a law? Pray, what can an election board decide?
AGNEW J.--Anything which disqualifies is determined by the election board.
MR. M'CLURE--Yes, sir.
AGNEW J.--Suppose a man goes out of the State and his absence disqualifies him, as a voter, the election board will certainly reject his vote.
MR. M'CLURE--Certainly. The election board decides everything pertaining to the right of suffrage. They are responsible only for an abuse of their power, and not for an honest error of judgement in accepting or rejecting a vote any more than is a judge in a court below when reversed by the court of last resort. Indeed, the law clearly contemplated the decision of the most important questions by election boards. One of the board is expressly denominated a judge by the law, and they must of necessity decide not only questions of taxation and residence, but they must pass judgement on the great question of citizenship when it is raised before them. They decide the question of the blood of the proposed elector when it is in doubt; and thereby are empowered to declare a man disfranchised and a stranger to our citizenship, just as the election board of Hamilton township declared Henry Reilly. They decide upon the legality of votes on every ground--for non-payment of taxes, alienage, non-residence, non-age, and may even decide against the solemn oath of the claimant for suffrage on the question of his intentions as to residence, if the fact in their opinion, warrant it. I submit therefore that the disfranchisement of deserters by election boards is no new or startling feature in the history of such tribunals, as they have decided questions of equal moment for a time whereof the memory of man runneth not to the contrary. If the charge of desertion is wrongfully made, he can disprove it as can a legal voter who is charged with any other act that disfranchsises him.
WOODWARD C. J.--He must first be convicted of the offence.
MR. M'CLURE--When felony disfranchised citizens, conviction was necessary, but conviction is, in such cases, necessary to due process of law. In case a man is disqualified as a voter by non-payment of taxes, or alienage, or non-residence must there be a conviction before the board can reject his vote? As these are not offences against the penal laws, how are persons to be convicted? If these acts of negligence require conviction by the courts before persons can be disfranchised, then we have been acting without warrant of law ever since the formation of the government. The only conviction necessary, is the decision of the election board.
If I should now be guilty of contempt of this learned court, what would be conviction?--what due process of law? Says the late Chief Justice Black in the case of Passmore Williamson, 2nd Casey, 19--"Contempt of court is a specific criminal offence. It is punished sometimes by indictment, and sometimes in a summary proceeding, as it was in this case. In either mode of trial, the adjudication against the offender is a conviction, and the commitment in consequence is execution." This power is a supreme necessity to maintain the dignity, and prevent the obstruction, of the administration of Justice, and such conviction is due process of law. It is the law of the civilized world--the law of the land.
The constitution provided in the most cautious terms, that persons held to service or labor in one State, under the laws thereof, escaping into another, shall be delivered up on claim of the party to whom such service or labor may be due. Congress was thereby charged with making all necessary laws to carry the provision into effect. It involved the liberty of those upon whom claim was made, but Congress denied the right of trial by jury. An irresponsible commissioner was entrusted with the execution of the law, and a premium paid for deciding against the liberty of the person from whom service was claimed, but it was held by the highest judicial tribunal of the nation to be due process of law. Thus were the powers of Congress construed to blacken and degrade our nationality. Are they to be abridged now because they were exercised to preserve and redeem that nationality?
If Henry Reilly had been sued for debt in the civil courts when he was wandering in a strange land to escape military service, a copy of the writ left at his house, where his family remained under the protection of the government he refused to defend, would have been sufficient to obtain judgement against him by default, and he could thus have been deprived of his property without hearing or even knowledge. It would have been due process of law. And so it is when the defendant in the civil courts elect not to appear and demand trial, as was the case with Henry Reilly in the proceedings which led to the suit now before this court. Judgement is taken for want of an appearance, or for want of an affidavit of defence, and it is not questioned that it is due process of law. In all our judicial proceedings either party may have judgement against him by neglect or default. He may elect not to avail himself of the advantages of trial, and judgement in such cases is confessedly the law of the land. Even in criminal cases prisoners may waive trial, because guilt is too clear to be controverted, and liberty is yielded to the majesty of the law by the election of the person charged with the crime.
If Henry Reilly had reported, had been mustered in the service, and been absent on any day at morning and evening roll-call, he would have been marked a deserter by his commanding officer, and until he disproved that record, he could not have drawn any pay, no matter how long the government may have been in arrears with him. It would have been due process of law. Had the government seen fit to order a Captain and two Lieutenants on court martial duty to try Mr. Reilly, they could have condemned and executed him, and it would have been due process of law. All these summary convictions are sanctioned in the military service, and as Mr. Reilly was confessedly in the military service for all the purposes to be considered by this court, can it be doubted that the government, in obedience to the necessities of the service, could empower a Captain acting as Provost Marshal, to mark a defaulting soldier as a deserter, and enforce the record and its penalties against him until he chooses to avail himself of trial and vindicate himself?
The authority to raise armies is part of the same grant that charges Congress with the levy and collection of taxes, and I ask the attention of this court to the manner in which Congress exercises the power to raise revenue. Revenue is of course, a supreme necessity, but let us look for a moment what is regarded as due process of law in the collection of taxes. In the case of Murray's Lessee et al vs. Hoboken Land and Improvement Company, 18th Howard, 272, we have an instructive lesson on the law of the land in the mere matter of collecting money due the government. In that case an audited account from the Treasury department against a collector, was treated as a judgement, in accordance with the act of Congress, and property was levied upon and sold by the U. S. Marshal to satisfy the claim. Naturally enough it was alleged that there was not due process of law. The mere balancing of an account by a subordinate in the Treasury department, without notice or hearing, and by such warrant proceeding to collect it, would seem to be a summary way of reaching execution not demanded by the exigencies of civil administration in the time of peace. But Congress is empowered to collect revenue, and in the exercise of its power, it decided not to enter into litigation with its subjects. It construed due process of law to be the seizing of a defaulter's property on a settled account, notwithstanding the provision of the constitution that forbids the taking of life, liberty or property without proper trial. The act of Congress even went so far as to provide that under certain circumstances the account between the government and the creditor might be the subject matter of a suit; but it was reserved to the government to allow or deny judicial investigation as it might deem best.
In the decision of the case Justice Curtis says, page 280, that "the proceedings authorized by the act of 1850 cannot be denied to be due process of law, when applied to the ascertainment and recovery of balances due to the government from a collector of customs, unless there exists in the constitution some other provision which restrains Congress from authorizing such proceedings." There being no such express prohibition, the power of Congress was declared to be properly exercised, although it denied any and every form of trial beyond the settlement of an account by a clerk.
Referring to the powers of Congress, the learned Judge proceeds, page 281:
"Among the legislative powers of Congress are the powers to lay and collect taxes, duties, imposts, and excises; to pay the debts and provide for the common defence, and the welfare of the United States; to raise and support armies; to provide and maintain a navy, and to make all laws which may be necessary and proper for carrying into execution those powers. What officers should be appointed to collect the revenue thus authorized to be raised, and to disburse it in payment of the debts of the United States; what duties should be required of them; when and how and to whom they should account, and what security they should furnish, and to what remedies they should be subjected to enforce the proper discharge of their duties, Congress was to determine."
The court then goes back to the broad principle, that the power to lay and collect taxes must carry with it all needful power to enforce its laws in its own way. On this point the court say:
"The power to collect and disburse revenue, and to make all laws which shall be necessary and proper for carrying that power into effect, includes all known and appropriate means of effectually collecting and disbursing that revenue, unless some such means should be forbidden in some other part of the constitution. The power has not been exhausted by the receipt of the money by the collector. Its purpose is to raise money and use it in the payment of the debts of the government. * * * It may be added that probably there are few governments which do or can permit their claims for public taxes, either on the citizen or the officer employed for their collection or disbursement, to become subjects of the judicial controversy, according to the course of the law of the land. IMPERATIVE NECESSITY has forced a distinction between such claims and all others, which has sometimes been carried out by summary methods of proceeding, and sometimes by systems of fines and penalties, but always in some way observed and yielded to."
If "imperative necessity" is a warrant for Congress resorting to summary process for the collection of its revenues, how much greater is the necessity for the summary punishment of those who, in the hour of the nation's peril, refuse to render it service. The government could survive judicial controversies between itself and its people relative to taxes, but public policy forbids it. The government could not survive judicial or even military controversies with its people in time of war, and to decide otherwise would be the work of death. Shall public policy reserve its most stringent mandate for the civil power of the government in time of peace? If so, then is our whole fabric of government a mockery. It can oppress in the name of "imperative necessity" where the course of the law of the land would attain the end desired, but is left paralyzed and powerless to summon its strength to preserve its own existence. Surely this learned court will not so decide in the face of the teachings of the highest judicial tribunals of the nation as to the authority and duty of Congress to make all needful laws to enforce obedience in time of common danger. Bear in mind that our highest court has held that "all the powers vested in Congress by the constitution are complete in themselves, and may be exercised to their utmost extent, and that there are no limitations upon them other than such as are prescribed in the constitution."--9th Wheaton, 196. The limitations must be PRESCRIBED. They must not be gathered from the mere spirit of any other part of the organic law. They must be clear and positive to limit a positive power delegated. Have we any such limitation? Is there any that approaches such a limitation? If there were such, of whatever character, they would completely destroy the power to raise armies, instead of making that power complete in Congress. It would be a confession that the constitution is but a mass of foolish, fatal contradictions, and that our boasted nationality is but a fiction and a fraud. Happily, however, our organic law is not thus marred--it has no fearful element of death within itself.
I had intended to refer in detail to the opinions of the members of this court in the case of Kneedler vs. Lane, but I have already trespassed too long upon your patience. Those opinions will necessarily enter largely into the consideration and judgement of this case. In them will be found the true land-marks of the constitution as defined by this court, and the power of Congress to exercise the necessary authority to enforce obedience to its laws, is clearly stated by the opinions in support of the judgement of the court. If the act of 1865 should now be declared invalid by this court, it would place its own judgements in strange antagonism. It would present the singular spectacle of the judicial tribunal of last resort in Pennsylvania first deciding that Congress had the power to conscript men for the army, but had not the power to enforce service or to punish desertion, without first submitting its measures to the capricious judgement of thirty-six States, with different laws, differently constituted courts, and judges of different affinities and sympathies. I confidently trust that our government and our judicial records will never witness such an attempt to deform and cripple the supreme law of the land.
I shall now briefly examine the objection raised against the act of Congress on the ground that it impairs the right of suffrage in the States.
The forfeiture of citizenship by Henry Reilly was voluntary, and the crime of desertion was committed with the full knowledge of the fearful penalty that must follow it. He thereby deliberately elected to forfeit his great birth-right, inherited from his enlightened and beneficent government. It had conferred that right upon him, and for the crowning crime of disclaiming the allegiance demanded in return, the priceless blessing of citizenship is revoked by the same power that created it. It was done because, as Wheaton says, "the United States is a supreme government, acting not only upon the sovereign members of the Union, but directly upon the citizens." That it is supreme over the sovereign members, is established by the uniform teachings of our history. But for this supremacy the revolt in Pennsylvania would have been the end of the Union, but the rebellion was suppressed by the supreme authority, as similar revolts were suppressed in South Carolina and Rhode Island. Vattle s. p. c. says:
"Since a nation is obliged to preserve itself, it has a right to everything necessary for its preservation. * * * A nation has a right to everything that can ward off imminent danger, and keep at a distance whatever is capable of causing its ruin; and from that very same reason that establishes its right, it has also the right to the things necessary to its preservation."
Wheaton, 115, says:
"This right of self-preservation necessarily involves all other incidental rights as a means to give effect to the principal end."
That the general government is charged with the preservation of our nationality, and that its power over the sovereign members of the Union for the purpose, cannot be questioned. If it is thus supreme over the sovereign members of the Union, can it be less so upon the individual citizens who hold their great franchise by the laws of the United States? The States cannot abridge the rights of a citizen of the Union, because he holds his citizenship from the supreme power, and can the States interpose to defeat the government in the exercise of its power to enforce the reciprocal duties of the citizen? The States cannot grant or enlarge or diminish the rights of citizenship, and it will be pretended that they can prevent the great creative power from forfeiting its gifts as a penalty for offences against its authority? Kent says that the question of citizenship "is one of national and not of individual (State) sovereignty." Every citizen of the United States "is a component member of the nation," says Attorney General Bates, "with rights and duties under the constitution and laws of the United States which cannot be abridged by the laws of any State." In the same opinion (29th Nov. 1862) he says that "every person who is a citizen of the U. States, whether by birth or naturalization, holds his great franchise by the laws of the United States, and above the control of any particular State."
The government had made Henry Reilly a citizen of the United States, and thereby assumed certain obligations touching his welfare which it was bound to fulfil. Had the government failed in the performance of its obligation, he could withdraw himself from it. Vattel s. p. 106, says:
"If the body of society or he who represents it (the government) absolutely fail to discharge their obligations toward the citizen, the latter may withdraw himself, for if one of the contracting parties does not observe his engagements, the other is no longer bound to fulfil his, as the contract is reciprocal between society and its members. It is on the same principle that society may expel a member who violates its laws."
"Allegiance is the tie or ligament which binds every subject to be true and faithful to his sovereign, in return for protection which is afforded him."
Attorney General Bates also clearly defines the relations between the citizen and the government, in his opinion of the 29th of Nov. 1862. He says:
"The duty of allegiance and the right to protection are correlative obligations, the one the price of the other, and they constitute the bond between the individual and his country."
Such are the mutual obligations between the government and the citizen, and they are created without any reference to the States, and must be fulfilled without the interposition of any of the sovereign members of the Union. They are above and beyond the powers of the States, and how is the State to interpose to defeat a penalty going to the forfeiture of citizenship? It can neither make or unmake a citizen, and it has no voice in defining the powers of the government, or the penalties it may impose for the violation of the compact made with the citizen.
STRONG J.--Is there any power in Congress to declare who are not citizens, except so far as naturalization is concerned?
MR. M'CLURE--Yes, sir.
STRONG J.--Congress has authorized a uniform law for naturalization. Does it follow that they have the right to make or unmake citizens?
MR. M'CLURE--Citizenship is not a natural right, according to the practical teachings of our government. It must be derived from some competent power. It certainly is not from the State. It must be from the supreme power of the nation. If not from the government, whence is citizenship derived? It is a created, a vested right, and there must be a power to create and vest it, and that power certainly can take it away in any manner not in conflict with its faith with the citizen. Surely it can forfeit it as a penalty for crime.
AGNEW J.--You mean that Congress may say whether he is a freeman or not by the crime he may have committed, and that being no freeman he has no ballot?
MR. M'CLURE--Congress, the legislature power of the government that has the only control of the question of citizenship, has, in the exercise of its power to raise armies, imposed the penalty of alienage for the crime of desertion, and I cannot doubt that he thereby ceases to be a freeman in the accepted sense of the term. He is deprived of the rights of citizenship, and the State then disfranchises him by its own laws.
STRONG J.--Is there not a distinction between the right of a citizen and the power of citizenship? A man may be put in prison for some crime. He does not thereby lose his citizenship, but is merely suspended in the exercise of it.
AGNEW J.--Is a man in prison convicted of felony a freeman?
STRONG J.--Yes, sir.
MR. M'CLURE--Suppose that Congress had imposed the penalty of imprisonment for life for desertion, instead of forfeiture of citizenship, would there be any distinction practically between the right of a citizen and the power of citizenship? If by the law of the land Henry Reilly had thus been punished, could any power but the power that imposed the penalty relieve him?--and could the State enterpose and say that it impairs the right of suffrage in Pennsylvania? If so, every criminal consigned to the penitentiary for counterfeiting, robbing mails or piracy could plead the sovereign power of the State to prevent the disfranchisement of its citizens by imprisonment. And what renders the position of the counsel on the other side the more inconsistent on this point, is the fact that Congress may, by its article of war, impose the death penalty for desertion, but it cannot disfranchise without an infraction of the rights of the States. Could inconsistency go farther? The greatest punishment may be lawfully inflicted, but the State can arrest the lesser punishment because some imaginary power or franchise, inherent in the State, is violated.
The United States as a supreme nationality possesses the power essential to that nationality to define the obligations of citizenship, and to demand the paramount allegiance due from the citizen to the government. Its power acting "directly upon the citizen," as Wheaton defines it, is certainly competent to declare what gross, palpable acts of abjuration and abandonment of the obligations of citizenship, shall work a forfeiture of such right, and the organic law of Pennsylvania is in harmony with this power of the general government. In conferring suffrage, as the State has the undoubted right to do, it provides in sec. 1, art. 3, of the constitution as follows:
"In elections by the citizens every white freeman of the age of twenty-one years, having resided in the State one year, and in the election district where he offers to vote at least ten days immediately preceding such election, and within two years paid a State or county tax, which shall have been assessed at least ten days before the election, shall enjoy the rights of an elector; that a citizen of the United States, who had previously been a qualified voter of the State and removed therefrom and returned, and who shall have resided in the district and paid taxes as aforesaid, shall be entitled to vote after residing in the State six months: Provided, That white freemen, citizens of the United States, between the ages of twenty-one and twenty-two years, and having resided in the State one year, and in the election district ten days as aforesaid, shall be entitled to vote although they have not paid taxes."
With this provision of our State constitution the whole ground of citizenship and suffrage is covered. Observe how it refers to "citizens" and "citizens of the United States" three times in the single section, thus scrupulously defining the first qualification of the voter to be national citizenship. No claim or pretence is put forth of any other citizenship than that derived from the general government, and to it the State properly defers in granting the right of suffrage. Is there any other citizenship? Is there any attribute of citizenship derived from the State? Suffrage is not an essential attribute of citizenship, for citizenship can be enjoyed while suffrage is denied, as has been the case in many States. If Pennsylvania had limited suffrage, founded upon property or educational qualification, and thus disfranchise certain citizens of the United States, could the act of Congress be enforced against those who are denied suffrage, and not against those who are voters? In the one case it could not be pretended that it impaired the right of suffrage in the State. This objection followed to its logical result, would present the State as claiming to discriminate between its own people in tolerating and nullifying the penalties imposed by Congress for an offence against the national authority.
But it is a mistake that the act of Congress assumes to regulate the question of suffrage in the State of Pennsylvania. It is true that it imposes a penalty which, by our own law, disfranchises the offender, but Congress no more assumes thereby to limit the suffrage of the State than it does by the punishment of any other crime which incidentally works disfranchisement. It takes life for certain offences, and the lesser rights are destroyed with the greater, including citizenship and suffrage. It incarcerates persons in penitentiaries for years, and convicts are thus disfranchised--not because Congress assumes to regulate suffrage, but because the loss of suffrage is a necessary result of the punishment imposed. It drafted our people into the army, and thereby disfranchised them, because it denied them access to the lawful places of voting; but no one pretended that he could escape service because the government impaired the right of suffrage. Disfranchisement in all these cases is an incident resulting from the exercise of necessary and conceded powers on the part of the government, and so it is in the case now before the court.
Henry Reilly is disfranchised by the laws of Pennsylvania and not directly by the laws of Congress. Congress does not declare that he shall not vote, and in some of the States he doubtless could vote, but the organic law of Pennsylvania confronts him and denies him suffrage because he has forfeited his national citizenship, and we limit suffrage in this State to those who are citizens of the United States. His disfranchisement is one of the incidental results of his alienage, and so made by our law, and not by the law of the nation.
It is clear therefore that Congress may compel citizens to accept service or forfeit citizenship without assuming to control the question of suffrage in the States, for in point of fact it does not regulate it thereby. In some of the States aliens can vote, and I see no reason why one who owes no allegiance to any other government may not vote in those States, notwithstanding the loss of national citizenship. The fact that Pennsylvania carries the sacrifice of national citizenship to the sacrifice of suffrage, is not an assumption on the part of Congress to control the suffrage of the State. On the contrary, the organic law of the State relating to suffrage, is in entire harmony with the power exercised by Congress by the act of March 3, 1865.
It is too late to question the right of expatriation in the State or nation, nor is it peculiar to the government of the United States. It was one of the boasted features of the liberty of the Romans that they could elect at any time to maintain or renounce allegiance to the government, and it is laid down by Chancellor Kent that the right to choose as to allegiance exists in every citizen. Public policy, and the comity to be observed between nations, forbid that we should deny to our own citizens what we invite the citizens of other nations to do. We recognize the doctrine of expatriation by the naturalization of foreigners, their admission into full fellowship, and their eligibility to nearly every office within the gift of the people, and can we assume to deny the same rights to our own citizens? A subject of a foreign power who had merely declared his intention to become a citizen of the United States--who had elected to change his allegiance--commanded the guns of our navy in defense of his rights, and the civilized world yielded assent to the action of our government in the case. Our own State adopted this policy at an early day. Chief Justice Tilghman declared in the case of Jackson vs. Burns, 3 Binney, 85, that "the principle of the English law, that no man could, even for the most pressing reason, divest himself of the allegiance under which he was born, is not compatible with the constitution of Pennsylvania." I regard it, therefore, as a principle settled beyond dispute, in this country, that any citizen may elect to change his allegiance, and thereby to forfeit his great franchise of national citizenship, at his pleasure. He may elect to change his allegiance, and thereby voluntarily forfeit his citizenship, or he may elect to forfeit his citizenship by refusing his allegiance to his own government. Either is equally a withdrawal of his allegiance, equally a forfeiture of his citizenship, and equally the act of his own deliberate choice. It is true that there is a distinction between the voluntary change of allegiance, and the sacrifice of citizenship as a penalty for refusing allegiance. In the one case the forfeiture is a penalty, and in the other it is a matter of preference; but it does not effect the principle. It shows that the right of citizenship can be divested alike by the subject and the government, although the government does not relieve the citizen from the obligation of citizenship, when it is forfeited as a penalty and no new allegiance chosen.
And while the citizen has the right to change his allegiance and surrender his national citizenship, the government has also certain rights essential to the enforcement of its contracts while they continue to exist. If, as is said by Vattel, 106, the citizen fails to "observe his engagement with the government, then the government is not bound to fulfil it, as the contract is reciprocal between society and its members," and, he adds that it is "on this principle also that society (the government) may expel a member who violates the laws." It is on this point that the highest power incident to nationality is properly exercised. A nation has not only the power, but it insists manifest duty, to exclude from citizenship those whose character wholly unfits them for the exercise of such rights. It is on this ground, I presume, that the Indians have been excluded from national citizenship, and free persons of color have been denied citizenship, without regard to fitness. Attorney General Bates held that a man cannot be a citizen if his character "is so incompatible with citizenship that the two cannot exist together." France forfeits citizenship for accepting a foreign office. The subject elects to surrender it, and the sacrifice is complete. So does Prussia. Austria forfeits the citizenship of those who abandon the country, whether in peace or war. While England denies the right of expatriation, nevertheless the English subject sacrifices all his rights as a citizen by adhering to a foreign power. Throughout all civilized history, the same doctrine has been the accepted law of nations, and the right to declare citizenship forfeited has been uniformly practised.
If this power can not be exercised by the government, then we are bound to espouse their cause and protect every traitor in foreign lands. Henry Reilly might flee to Canada as a cowardly or faithless citizen, to escape the service he owes the government that protects himself and family, and if called upon for service there, or any of the rights of American citizenship should be violated in him, the government would be bound to follow the skulking deserter to protect and defend him. Can it for a moment be supposed that a great nationality is thus at the mercy of every perfidious or craven creature who has attained the great franchise of citizenship, only to disgrace it and deny its reciprocal duties? If so, in time of public danger by war, the whole military power of the government might be necessary to protect our deserters in their rights of citizenship, as they enjoy themselves in foreign lands to escape the defence of their own institutions. The ministers plenipotentiary of the late rebel government could have commanded the military and naval power of the United States to avenge their wrongs, as they bore the offering of treason from court to court abroad, appealing for recognition and aid to overthrow the Republic. I think that even the able counsel on the other side (Mr. Sharpe) would be appalled at the fruition of his own doctrine, when the traitor and deserter should call for the protection of the government they had disowned in the day of trial.
There can be no middle ground in the application of the doctrine. While persons are citizens they are entitled to the fullest protection throughout the world. The talismanic words, "I am a Roman citizen," once commanded the respect of the proudest potentates of earth, but not less entitled to respect is the claim of American citizenship. Wherever civilization has found a resting place, there is our flag, the emblem of our liberties, and the rights of our citizens are as sacred in the dominions of the most absolute despotism as in our own free Pennsylvania. But while the government throws its broad shield of protection over its citizens in every clime, it exacts reciprocal duties, and they must be performed. If not performed, the compact is destroyed--the government lives on to fulfill its beneficent mission to a faithful people committed to its supreme civil guardianship; but the citizenship dies and leaves an alien, a wanderer and a stranger to mankind, where once was an integral part of a mighty nation. It is not done by trial, for process cannot reach the fleeing civil suicide, and legal impossibilities cannot be exacted from the national authority any more than it can exact them from its citizens. But it is done by the supreme sovereignty, that has the exclusive right to create, define, limit and control the question of citizenship, and it follows its treacherous and cowardly sons who have disowned its protection to escape its service, with the terrible fiat, that they "shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship, and their rights to become citizens."
It is "the supreme law of the land" that thus thunders its retributive vengeance against the faithless, and the response from the organic law of Pennsylvania is that disfranchisement shall follow the forfeiture of citizenship. Such is the fate of Henry Reilly, deliberately accepted and invited upon himself, and it is as JUST as it is LAWFUL!
*The case of Huber vs. Reilly, involving the constitutionality of the act of Congress disfranchising deserters, was carried to the Supreme Court by writ of error from the Court of Common Pleas of Franklin county. Mr. Reilly, a citizen of Hamilton township, had been enrolled, drafted and not fled; and he failed to report to put in a substitute or to pay commutation, and when he presented his ballot in the fall of 1865 his vote was rejected by Mr. Huber, who was judge of the election. Mr. Reilly brought an action against Mr. Huber for damages for refusing his vote, and on a case stated, the Court below had entered judgement in favor of Reilly for one dollar and costs. The counsel of Huber--Messrs. John Cessna, Stumbaugh & Gehr and M'Clure & Stewart--took a writ of error to the Supreme Court, where it was argued on the 24th of May last. Mr. Cessna opened the argument in support of the act of Congress, and Mr. Sharpe followed in an argument directed to establish the unconstitutionality of the law. He assailed the constitutionality of the law on the following grounds:
"1st. It is incompetent for Congress, under the Federal Constitution, to impair either directly or indirectly, the right of suffrage in the States.
"2nd. The Act of Congress of the 3d March, 1865, is an ex post facto law, and therefore violates the Federal Constitution.
"3d. The act proposes to inflict and impose pains and penalties upon offenders before and without trial and conviction by due process of law, and therefore is in direct antagonism to the bill of rights."
Mr. M'Clure concluded the argument in support of the constitutionality of the law, and we give his remarks as reported phonographically by Luther Stroup, Esq.
**It is but fair to the Chief Justice, as the argument makes no explanation of the disagreement of the judges here given, to state that in the case of Kneedler vs. Lane, the court decided in Pittsburg, on the 9th of November, 1863, on granting a preliminary injunction to restrain the Provost Marshal from forcing Kneedler into the military service, that the conscription act was unconstitutional. On the 16th of January, 1864, the case came up for final hearing and judgement, and the court on the same case, pronounced the law constitutional. Chief Justice Lowrie, who had delivered the opinion of the court on the 7th of November, 1863, had in the mean time been succeeded by Justice Agnew, and the conviction of the court was thus changed by the change of the members composing it. Chief Justice Woodward doubtless held therefore that the doctrine of stare decises made the first decision of the law of the State, which new judges could not, or certainly should not reverse. It should not be overlooked, however, that the decision of 9th November, 1863, was on granting a preliminary injunction on an ex parte hearing, as is common upon bills in equity praying for immediate relief. Chief Justice Lowrie, in delivering the opinion of the court, expressed his regret that the government had not been represented, and said:--"I cannot be sure that I have not overlooked some grounds of argument that are of decisive importance. But the decision now to be made is only preliminary to the final hearing, and it is hoped that the views of the law officers of the government will not then be withheld." (9th Wright, 240.) The decision, therefore, that Chief Justice Woodward declared to be the only decision of the court "in regular form," was declared by the opinion of the court to be but a "decision" that was "preliminary to the final hearing." On the final hearing, and final judgement, the court affirmed the constitutionality of the conscription law, vacated the orders previously made in the case, and the motions for injunction were overruled.
Union Policy of Reconstruction
(Column 5)Summary: A copy of the proposed amendment granting citizenship to all persons born or naturalized in the United States, as it passed both houses of Congress.The Day We Celebrate
(Column 5)Summary: The editors note that on this day, the ninetieth anniversary of the republic's founding, the country may finally start to live up to Jefferson's pledge "All men are created equal."
Full Text of Article:A National Political Circus
Just ninety years ago this day, the fathers of the Republic adopted the Declaration of Independence, severing the Colonies from the despotic rule of Britain. They did it because, as they said:--"We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator, with certain inalienable rights; that among these are life, liberty and the pursuit of happiness;" and they further declared that "to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed."
The author of this immortal document was born and reared under the dominion of Slavery, but he abhorred it, and ceased not until his death to demand its extinction. He meant just what he said when he wrote the noble sentence we have quoted, and with prophetic pen he delineated the inevitable evils which must result from the perpetuity and growth of bondage. He saw in it not only discord and internecine strife, but he looked even to the day when the majesty of justice might reverse the positions of the races, and make the oppressed the ruling power of the land degraded by Slavery.
In time the founders of the Republic passed away, and their teachings were forgotten. Step by step the insatiate wrong spread over our fair land, until it possessed the major portion of our territory. It lavished our treasure to extend its power. It crimsoned our history with blood to gain new fields wherein to glut its appetite. It compassed every department of the government, and at last dragging even the judiciary down to its fatal embrace. The blooming territories of the West were opened to its desolating tread, and even the States were no longer safe from its relentless aggressions. The nation was taught that four millions of human beings in our midst had no rights the white man was bound to respect; and the free industry of twenty millions, the life, the wealth, the power and the glory of our nationality, was crushed and dishonored to rivet the fetters of the bondmen.
At last, in the fullness of His time, the great national crime had reached the measure of its oppression, and expiation was demanded. Slavery was ready to rear its bloody altar to dismember the government that had fostered and protected it. In madness it sought destruction, and a million lives and countless treasure made up its last atonement. As God is just, it was vanquished in the conflict; and after ninety years of mingled right and wrong--of boundless progress and debasement--of humiliating compromise and its legitimate fruits in fraternal war, the great Republic has returned to celebrate its natal day on the platform founded by Thomas Jefferson in 1776.
"The Day we celebrate" will pass the lips of thousands of loyal men to-day as the leading toast, where patriotism is gathered in clusters of faithful people to rejoice over a nationality preserved by most appalling sacrifices; and there will be rejoicing from the Atlantic to the far western Pacific slopes, and from the cool waters of the Northern lakes to the burning sands of the Gulf shore, that a nation of thirty millions has written in its richest blood this lesson for mankind--"That all men are created equal." The sullen traitor, who still hopes to destroy by treachery what he failed to dismember by the sword; his cowardly sympathizer who consistently wars with progress, justice and loyalty, and the ignorant who ask the protection of law against the advancement of a degraded race, will all be sad to-day, because Justice and Freedom are indelibly emblazoned upon the escutcheon of the Republic. But where there is a patriotic heart, there will be gladness that the great fabric of free government has reached the last decade of a century; and with grandsire, sire and son sleeping amidst three generations in its ridges, plains and valleys, it gives promise to many generations yet unborn, that here shall be the impregnable citadel of Freedom--"life, liberty and the pursuit of happiness" for the children of every condition and clime. Thus answers 1866 to the birth day of the Republic just ninety years ago!
(Column 6)Summary: The editors dismiss the call issued by President Johnson and his "Bread and Butter Brigade" for a National Union Convention to meet on August 14th, deriding it as "a congenial gathering for genuine Democrats of the coppery hue."[No Title]
(Column 7)Summary: The piece relates that Franklin county soldiers met last Wednesday and approved the platform passed at the Pittsburg Soldiers' Convention, including the provision endorsing Gen. Geary for governor.[No Title]
(Names in announcement: Col. Rowe, Col. Stumbaugh)
(Column 8)Summary: It is reported that Col. Forney declared himself in favor of "universal suffrage, without regard to color," while laying out his platform at a recent political rally in Lebanon county.
United States Senator
(Column 1)Summary: The author of the letter offers an endorsement of Frederick Carroll Brewster for U. S. Senate. He claims Brewster has the support of "a decided majority of the Philadelphia delegation in the caucus of the Union party."
Trailer: A Philadephia MemberLocal Items--Soldiers' Convention
(Column 1)Summary: On June 27th, Franklin county soldiers met to discuss the proceedings at the Soldiers' Convention in Pittsburg. Following an oration delivered by Col. Rowe on the events that transpired at the conference, those soldiers in attendance at the meeting passed a resolution endorsing the platform adopted in Pittsburg and the nomination of Gen. Geary.Local Items--Antrim Bounty Case
(Names in announcement: Col D. L. Rowe, Col. John L. Ritchie, Capt. William Burgess, Lt. John Stewart, Capt. E. K. Lehman, Capt. Joseph Davison, F. S. Stumbaugh, T. J. Nill)
(Column 1)Summary: Notes that the state supreme court has affirmed Judge King's decision in the Antrim Bounty case. It also affirmed that the tax must be collected as levied by the School Board.
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