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Valley of the Shadow

Franklin Repository: July 11, 1866

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-Page 01-

Maj. Gen. John W. Geary
(Column 5)
Summary: The article briefly chronicles Gen. Geary's life and his military career.
Disfranchisement of Deserters
(Column 6)
Summary: A copy of the majority opinion in the Huber vs. Reilly case, as read by Justice Strong of the Pennsylvania Supreme Court.
Full Text of Article:

The following opinion of the Supreme Court in the case of Huber vs. Reilly, was read by Justice Strong:

The act of Congress under which the defendant below justifies his refusal to receive the vote of the plaintiff is the one approved on the 3rd day of March, 1865. The twenty-first section is the only one applicable to this case, and it is as follows: "And be it further enacted, that in addition to the other lawful penalties of the crime of desertion from the military or naval service, all persons who have deserted the military or naval service of the United States, who shall not return to said service, or report themselves to a Provost Marshal within sixty days after the proclamation hereinafter mentioned, shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship, and their rights to become citizens; and such deserters shall be forever incapable of holding any office of trust or profit under the United States, or of exercising any rights of citizens thereof; and all persons who shall hereafter desert the military or naval service, and all persons who being duly enrolled, shall depart the jurisdiction of the district in which he is enrolled, or go beyond the limits of the United States, with intent to avoid any draft into the military or naval service, duly ordered, shall be liable to the penalties of this section." This is followed by a clause authorizing and requiring the President to issue his proclamation setting forth the provisions of the section, and we know judicially that this was done on the 11th of March, 1865.

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

The constitutionality of the act has been assailed on three grounds. The first of these is that it is an ex post facto law, imposing additional punishment for an offence committed before its passage, and altering the rules of evidence so as to require different and less proof of guilt than was required at the time of the perpetration of the crime. The second objection is, that the act is an attempt by Congress to regulate the right of suffrage in the States, or to impair it, and the third objection is that the act proposes to inflict pains and penalties upon offenders before and without a trial and conviction by due process of law, and that it is therefore prohibited by the bill of rights.

In the view which we take of this case, and giving to the enactment the construction which we think properly belongs to it, it is unnecessary to consider at length, either of these objections to its constitutionality. It may be insisted, with strong reason, that the penalty of forfeiture of citizenship imposed upon those who had deserted the military or naval service prior to the passage of the act is not a penalty for the original desertion, but for persistence in the crime, for failure (in the language of the statute) to return to said service, or to report to a Provost Marshal within sixty days after the issue of the President's proclamation. If this is so, the act of Congress is in no sense ex post facto, and it is not for that reason in conflict with the constitution. Its operation is entirely prospective. If a drafted man owes service to the Federal government, every new refusal to render the service may be regarded as a violation of public duty, a public offence for which Congress may impose a penalty. And as it is the duty of every court to construe a statute, if possible, so "ut res magis valeat, quam pereat," that construction of this act must be adopted which is in harmony with the acknowledged powers of Congress, and which applies the forfeiture of citizenship to the new offence described as failure to return to service, or to report to the Provost Marshal.

The second objection also assumes more than can be conceded. It is not to be doubted that the right to regulate suffrage in a State, and determine who shall, or who shall not be a voter, belongs exclusively to the State itself. The constitution of the United States confers no authority upon Congress to prescribe the qualification of electors within the several States that compose the Federal Union. Congress is indeed empowered to make regulations for the time, place and manner of holding elections for Senators and representatives, or to alter those made by the legislature of a State, except those in relation to the places of choosing Senators, but here its power stops. The right of suffrage at a State election is a State right, a franchise conferrable only by the State, which Congress can neither give nor take away. If, therefore, the act now under consideration is in truth an attempt to regulate the right of suffrage in the States, or to prescribe the conditions upon which that right may be exercised, it must be held unwarranted by the constitution. In the exercise of its admitted powers, Congress may doubtless deprive an individual of the opportunity to enjoy a right that belongs to him as a citizen of a State, even the right of suffrage. But this is a different thing from taking away or impairing the right itself. Under the laws of the Federal government, a voter may be sent abroad in the military service of the country, and thus deprived of the privilege of exercising his right, or a voter may be imprisoned for a crime against the United States, but it is a perversion of language to call this impairing his right of suffrage. Congress may provide laws for the naturalization of aliens, or it may refuse to provide such laws. Its action or non-action may thus determine whether individuals shall or shall not become citizens of the United States, and I cannot doubt as a penalty for crime against the general government, Congress may impose upon the criminal forfeiture of his citizenship of the United States. Disfranchisement of a citizen as a punishment for crime, is no unusual punishment. Barker vs. the People, 20 Johns, 458. If by the organic law of a State, citizens of the United States are only allowed to vote, the action or non-action of Congress may thus indirectly affect the number of those entitled to the right of suffrage. Yet after all, the right is one which its possessor holds as a citizen of a State, secured to him by the State constitution, and to be held on the terms prescribed by that constitution alone. It is an integral part of the State government.

But it is not a correct view of the act of Congress now before us to regard it as an attempt to override State constitutions or to prescribe the qualifications of voters. The act makes no change in the organic law of the State. It leaves that as before, to confer the right of suffrage as it pleases. The enactment operates upon an individual offender, punishes him for violation of the federal law, by deprivation of his citizenship of the United States, but it leaves each State to determine for itself whether such an individual may be a voter. It does no more than increase the penalties of the law upon the commission of crime. Each State defines for itself what shall be the consequence of the infliction of such penalties. And with us it is still our own constitution which restricts the right of suffrage, and confers it upon those only who are inhabitants of the State, and citizens of the United States.

The third objection against the validity of the act of Congress would be a very grave one, if the act does in reality impose pains and penalties before and without a conviction by due process of law. The fifth article of the amendments to the constitution ordains "that no person shall be held to answer for a capital or other infamous crime, unless on a presentment, or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall 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." The sixth article secures to the accused in all criminal prosecutions certain rights, among which are a speedy and public trial, by a jury of the vicinage, information of the nature and cause of the accusation, face to face presence with the witnesses against him, compulsory process for his own witnesses, and the assistance of counsel. The spirit of these constitutional provisions is briefly that no person can be made to suffer for a criminal offence unless the penalty be inflicted by due process of law:--What that it has been defined, but never better than it was both historically and critically by Judge Curtis, of the Supreme Court of the United States, in Dell vs. Murray et al, 18 Howard 272. It ordinarily implies and includes a complainant, a defendant and a judge, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceeding. It must be admitted there are a few exceptional cases. Prominent among these are summary proceedings to recover debts due to the government, especially taxes and sums due by defaulting public officers. But I can call to mind no instance in which it has been held that the ascertainment of guilt of a public offence, and the imposition of legal penalties, can be in any other mode than by trial according to the law of the land or due process of law, that is the law of the particular case, administered by a judicial tribunal authorized to adjudicate upon it. And I cannot persuade myself that a judge of elections or a board of election officers, constituted under State laws, is such a tribunal. I cannot think they have power to try criminal offenders still less to adjudge the guilt or innocence of an alleged violator of the laws of the United States. A trial before such officers is not due process of law for the punishment of offences, according to the meaning of that phrase in the constitution. There are, it is true, many things which they may determine, such as the age and residence of a person offering to vote, whether he has paid taxes, and whether if born an alien he has a certificate of naturalization. These things pertain to the ascertainment of a political right. But whether he has been guilty of a criminal offence, and has as a consequence, forfeited his right, is an inquiry of a different character. Neither our constitution nor our law has conferred upon the judges of elections any such judicial functions. They are not sworn to try issues in criminal cases. They have no power to compel the attendance of witnesses, and their judgement if rendered would be binding on no other tribunal.

Even if they were to assume jurisdiction of the offence described in the act of Congress, and proceed to try whether the applicant for a vote had been duly enrolled and drafted, whether he had received notice of the draft, whether he had deserted and failed to return to service or failed to report to a Provost Marshal, and whether he had justifying reasons for such failure, and if after such trial they were to decide that he had not forfeited his citizenship all this would not amount to an acquittal. It would not protect him against a subsequent similar accusation and trial. It would not protect him against trial and punishment by a court martial. Surely that is no trial by due process of law, the judgement in which is not final, decides nothing, but leaves the accused exposed to another trial in a different tribunal and to the imposition by that other tribunal of the full punishment prescribed by law.

Moreover it is not in the power of Congress to confer upon such a tribunal, which is exclusively of State creation, jurisdiction to try offences against the United States. Notwithstanding the decision in Buckwalter vs. United States (11 S. & R., 193) which was an action for penalties, declared to be recoverable as other debts, the doctrine seems a plain one, that Congress cannot put any of the judicial power of the United States in the courts of any other government or sovereignty. Martin vs. Hunter's lessee, 1 Wheaton, 304, 330, Eby vs. Peck, 7 Con., 242, and Scoville vs Canfield, 14 Johns, 338. And clearly if this is so Congress cannot make a board of State election officers competent to try whether a person has been guilty of an offence against the United States, and if they find him guilty to enforce a part of the prescribed penalty.

If therefore the act of March 3, 1865, really contemplates the infliction of its prescribed penalty or any part of it without due process of law, or if it attempts to confer upon the election officers of a State the power to determine whether there has been a violation of the act incurring the penalty, and to enforce the penalty or any part of it, it may well be doubted whether it is not transgressive of the authority vested in Congress by the constitution.

But such is not the fair construction of the enactment. It is not to be presumed that Congress intended to transgress its powers, and especially is this true when the act admits of another construction entirely consonant with all the provisions of the constitution.

What then is its true meaning? As already observed, forfeiture of citizenship is prescribed as a penalty for desertion, an additional penalty, not for an offence committed before the passage of the act, but for continued desertion and failure to return or report. It is not a new consequence of a penalty, but it is an integral part of the thing itself. Nor is it the whole. It is added to what the law had previously enacted to be the penalty of desertion, as imprisonment is sometimes added to punishment by fine.

It must have been intended, therefore, that it should be incurred in the same way, and imposed by the same tribunal that was authorized to impose the other penalties for the offence. It would be very absurd to suppose that two trials and two condemnations for one crime were intended, or that it was designed that a criminal might be sentenced in one count to undergo a part of the punishment denounced by the law, and be punished in another court by the imposition of the remainder. The law as it stood when the act of 1865 was passed, had provided a tribunal in which alone the crime of desertion could be inflicted. The consequences of conviction may be noticed in other courts, but the tribunal appointed by the law for that purpose is the only one that can determine whether the crime has been committed, and adjudge the punishment.

The act of March 3d, 1865, is not to be considered apart from the other legislation respecting the crime of desertion. It is one of a series of acts pertaining to the same subject matter. It must, therefore, be interpreted with them all in view. This is an admitted rule of statutory construction. So long ago as Rex vs. Soxdale, 1 Burrows, 147, Lord Mansfield said when speaking of acts of Parliament, "that all which relate to the same subjects, notwithstanding some of them may be expired or not noticed, must be taken to be one system and construed consistently." So Chancellor Kent, in the first volume of his commentaries, 463-4, said "it is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy was intended to be consistent and harmonious in its several parts and provisions." In looking through the numerous acts of Congress relating to desertion from military or naval service it is plainly to be seen that they all contemplate a regular trial and conviction prior to the infliction of any penalty, and court martials are constituted and regulated for such trials. The twentieth article of war, enacted on the 10th of April, 1806, (Brightly's 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. Corporeal punishment by stripes was abolished by the act of May 2d, 1833, that section of the repealing act was itself repealed, "so far as it applies to any enlisted soldier who shall be convicted by a general court martial of the crime of desertion." By the act of January 11, 1812, an additional penalty was prescribed for desertion, and it was declared that "such soldier shall and may be tried by a court martial and punished." Brightly's Dig., 89. The 13th section of the act of March 3d, 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 enrollment shall relieve him from the draft." All these acts of Congress manifestly contemplate trial for desertion by court 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 or 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 March 3d, 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 be read as if it had been incorporated into the former acts. And if it had been, if the act of 1806, and its supplements had prescribed that penalty for desertion or failure to report within a designated time after notice of draft (which the act of 1863 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 court-martial 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 defense, 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 with intolerable hardships. The accused will thus 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 defense 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 judgement 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.

And now, to wit, June 20, 1866, the judgement of the Court of Common Pleas of Franklin county is affirmed.
Geo. W. Woodward,
Chief Justice.

WOODWARD C. J.-I concur in the conclusion stated in the above opinion, and in most of the reasoning by which that conclusion was 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 committed 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 the offence was committed, and it is not competent for the legislature to increase them except for future cases.

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Return of the State Flags
(Column 1)Judge Strong's Decision
(Column 2)
Summary: The editorial criticizes the state supreme court's decision in the Huber vs. Reilly case, asserting that it sets a dangerous precedent. "If the judicial tribunal of Pennsylvania can set aside one feature of the conscription law upon the ground of want of due process flaw," it declares, "any other State may nullify the same power on any other ground."
Full Text of Article:

We give in to-day's paper the decision of the Supreme Court, delivered by Justice Strong, in the somewhat notorious deserter case of Huber vs. Reilly. Although the record before the court raised every issue pertaining to the act of Congress, the court has apparently decided nothing more than was necessary to affirm the judgement of the court below.

The opinion of Judge Strong is not marked by that judicial candor that should ever characterize the decisions of our courts, and especially our court of last resort. He assumes in express terms not to decide the question of the constitutionality of the law of Congress disfranchising deserters; but he does decide in plain terms, that the mode of ascertaining guilt prescribed by Congress is in conflict with the constitution because it is not due process of law. The act of Congress assumed to declare the citizenship of the deserter forfeited, and provided that the record of the Marshal shall be conclusive evidence of the crime--as has ever been the practice in the military regulations of all nations--until it is disproved. The law makes no provision for any other conviction to ascertain the offence and enforce the penalty, and Judge Strong holds that such process is not conviction within the terms of the constitution, and thereby judicially declares that feature of the conscription act unconstitutional. He might with equal propriety, and with much more candor, have stated frankly that the act is an infraction of the bill of rights, and therefore void. Had he said so frankly, the purpose and effect of the decision would have been clearly understood both by the profession and the people. As it is, the court disclaims assailing the constitutionality of the law, and yet in the most vital manner does in fact assume to overthrow an act of Congress passed in the exercise of the most important power delegated to it by the constitution.

If the judicial tribunals of Pennsylvania can set aside one feature of the conscription law upon the ground of want of due process of law, any other State may nullify the same power on any other ground. South Carolina would probably declare it unconstitutional because it assumes to coerce States out of their fancy for nullification, and thirty-six different States could set it aside within their respective jurisdiction for thirty-six different reasons. If the Supreme Court of Pennsylvania can assure the government that there is, under the decision, even a vestige of practical power left with Congress to raise and support armies and to regulate the land and naval forces, we would be profoundly grateful to it for some explanation of the ground on which such assurance is based. It may be so, but we must plead a want of sufficient perspicacity to discern it. If the decision is sustained, it will prove a complete and sweeping amnesty to deserters, and treachery and loyalty will share equally the blessings of a redeemed Republic, while the exactions and bereavements of the struggle will remain only to those who were faithful in the day of national peril.

[No Title]
(Column 2)
Summary: Although several Union men in Franklin county have voiced their support behind a move to reconvene the legislature for an extra session in order to ratify the amendment recently approved by Congress, the article urges them to proceed with caution. Instead, it calls for the measures to be "submitted to the people," which will provide "a degree of sanctity and positiveness that the rebellious States will not disregard."
United States Senator
(Column 6)
Summary: "An Ex-Representative" disputes the claim made in a letter that appeared in the Repository last week asserting that a significant portion of the Union party of Philadelphia has endorsed Frederick Brewster in the Senate race. The author of the letter contends that it is Col. William B. Thomas, Collector of the Port, in fact, who commands the most support among the city's Republicans.
Trailer: An Ex-Representative

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Local Items--Commencement at Princeton
(Column 1)
Summary: The piece notes that local resident Dr. A. H. Strickler was among those receiving a degree at Princeton University's graduation ceremonies last month.
(Names in announcement: Dr. A. H. Strickler)
Local Items--The 126th
(Column 1)
Summary: A ceremony was held in Philadelphia on July 4th to commemorate the return of the various regimental flags to Pennsylvania. The 126th was represented by the following men: Col. J. G. Elder, Lieut. Col. D. W. Rowe, Lieuts. J. G. Rowe and McWilliams, Sergts. Thomas Daily, John A. Seiders, William Snyder and Harry Strickler, Corp. Kauffman, and Privates Joseph Zarman, George Pilkington and Parker. Sergt. Daily and Corp. Kauffman served as the color bearers.
(Names in announcement: Col. J. G. Elder, Lieut. Col. D. W. Rowe, Lieut. J. G. Rowe, Lieut. McWilliams, Sergt. Thomas Daily, Sergt. John A. Seiders, Sergt. William Snyder, Harry StricklerSergt., Corp. Kauffman, Private Joseph Zarman, Private George Pilkington, Private Parker)
Local Items--Sons of Temperance
(Column 1)
Summary: At the meeting of the Sons of Temperance last Friday, D. D. A. H. McCulloh installed the chapter's officers.
(Names in announcement: Frank Henderson, Barnet Earley, W. S. Roney, George R. Wunderlich, James Reside, W. E. Tolbert, Rev. S. H. C. Smith, John N. Paxton, D. W. Newman, Edward C. Eyster, Thomas Henneberger, Alice E. McCulloh, Cordelia Forbes, Emma Jarrett, Mary Barnitz, Kate M. Kirby)
Local Items
(Column 1)
Summary: Reports that a monument to the deceased soldiers of Path Valley will be erected this summer in Spring Run. The cost of the project is expected to amount to $600.
Local Items--Robbery
(Column 1)
Summary: "Some unprincipled scoundrels" broke into Mrs. Feldman's store near the C. V. Depot last week and stole a quantity of firecrackers and candy, marking the fourth time that her shop has been burgled within the past two months.
(Names in announcement: Mrs. Feldman)
Gov. Curtin and the Senatorship
(Column 2)
Summary: The article endorses Gov. Curtin for the U. S. Senate.
Origin of Article: Pittsburg Chronicle
Editorial Comment: "The Pittsburg Chronicle thus declares its preference for the Senatorship:"
(Column 3)
Summary: On June 27th, William T. Cutler, of Altoona, Blair county, and Marion J. McCune were married by Rev. J. Benson Akers.
(Names in announcement: William T. Cutler, Marion J. McCune, Rev. J. Benson Akers)
(Column 3)
Summary: On July 3rd, George Gross, 58, died in Chambersburg.
(Names in announcement: George Gross)
(Column 3)
Summary: On June 22nd, Joseph Flickinger, 76, died near Fannettsburg.
(Names in announcement: Joseph Flickinger)
(Column 3)
Summary: On July 23rd, Micha Myers, 70, died.
(Names in announcement: Micha Myers)
(Column 3)
Summary: On May 23rd, James C. Rankin, 66, died in Mercersburg. Rankin was the ruling elder of the U. P. congregation of Mercersburg.
(Names in announcement: James C. Rankin)

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