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Valley of the Shadow

Valley Spirit: July 04, 1866

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The "Deserter" Case
(Column 3)
Summary: Contains a transcript of the argument presented before the State Supreme Court by J. McDowall Sharpe, attorney for the defense in the Huber vs. Reilly case.
(Names in announcement: J. McDowall SharpeEsq.)
Full Text of Article:

Argument of J. McD. Sharpe, Esq., before the Supreme Court of Pennsylvania, in the case of Huber vs. Reilly, generally known as the "Deserter" Case.

May it please the Court, I trust your honors will believe me when I say that I rise to discuss the question, under feeling of the most painful embarrassment. I am overcome by the consciousness that nothing I can say will either instruct, or edify the mind of the Court. I am overpowered by the reflection that upon a proper presentation of the question, now at the bar of the Court, may depend to some extent, at least, its right and proper decision, and that most certainly upon its correct determination, hang suspended the liberties of near thirty thousand freemen of Pennsylvania. Indeed this is all odds the most important case ever argued before this tribunal. Other cases have been discussed here, involving millions of money. A few involving the life of the citizen. But this case involves that, without which property would be valueless, and life itself a curse--the possession of the privileges of a freeman and his right to call himself a citizen of Pennsylvania. With such fearful responsibilities weighing upon the speaker, it is no wonder that his tongue should hesitate, his cheek pale and his heart faint. One thought alone nerves him to proceed, it is the consciousness of the justice of his cause; the faith that truth in the end always must triumph, and the firm conviction that the learning of this court can master the gravest subjects and solve the most intricate questions, even when aided by feeble insturmentalities. Thus stimulated and encouraged I shall endeavor to present this case to the court, with as much brevity and as little trespass upon your patience as its importance will permit.

After four years of the most fearful internecine strife known to modern history, it hath pleased God to bring this nation back into the paths of peace. The temple of Janus is closed and the sounds of war are hushed throughout all our borders.--The thirsty earth hath drunk her fill of blood spilled in fratricidal strife. The moloch of war hath been so gorged with the victims that even his hunger is appeased. The pangs and throes of a gigantic revolution have passed off and the Republic lives.--Time and again, our liberties were well nigh wrecked upon the treacherous rock of military despotism. Though we held fast to the Constitution, and as the mariner clings to the plank when night and the tempest are around him, it was not without much reproach through bitter tribulation. During those four bloody years it was not always safe to say, we love the government which are fathers gave us, and we mean to stand by its organic laws as the only palladium of our liberties Many edicts were issued and laws passed both by the national and State legislatures which did not pretend to have a Constitutional warrant, but boasted themselves to be the offspring of military necessity. The war powers of the government expanded to such colossal proportions that the Constitution was wholly overshadowed and its sanctity mocked and profaned. Indeed there was quite a large school of politicians, who boldly proclaimed that the Constitution was not intended for times of war. Bold blasphemy; unblushing effrontery, thus to stigmatize the wisdom of its framers; men who having broken the chains of tyranny, after a struggle of eight weary years, it is now pretended, so loved bondage, that when they came to form a government they pined an unbridled sceptre in the hands of their own servants more potent to smile down their liberties, than that of the monarch against whom they had rebelled.--What is to be said of the folly and the mariner, who when his vessel is out upon an unknown and tempestuous sea, with a starless night above him, and the raging waves around him, would throw his chart and compass overboard? What is to be said of the folly, aye worse than folly, the wickedness of those, who, when the ship of state freighted with the hopes of human liberty, is tossed about upon an angry ocean, its crew in mutiny, its sails gone, and itself a helpless wreck rushing upon the breakers, would cast the helmsman into the deep and throw the chart of the Constitution after him. Surely madness must rule the hour, which gives birth to such follies. We submit that there is a time when the Constitution is of more value than at other times, it is during the exigencies of war. Because it is just in such times that there is the strongest temptation to usurp unwarranted powers. It is then, the strongest tendency to centralization manifests itself. It is then, that the voice of reason and the pleadings of outraged justice are too often stifled by the gust of passion or remain unheeded amid the dreams of ambition. If there is a time when we can do better without a Constitution that other times, it is when we are in a state of profound peace. Then there is no opportunity for, and therefore little danger of usurpation being successful. The machinery of government runs smoothly and without a single jar in its accustomed grooves. He who would attempt to play the usurper then, would swiftly rush upon his own destruction. It is only in times of civil commotion, that some desiring Caesar can seize and bind the liberties of the people.

These strange doctrines and new theories about war powers and military necessity sound better everywhere else, than in this august presence. The plea of tyrants must surely be unwelcome in a court which is sworn to uphold the Constitution. I fondly hoped that the learned counsel (Mr. Ceasna) who opened this discussion would have led his train of though along by the old constitutional landmarks. Instead of this he mounted his war steed and galloped in gallant style along the highway of military necessity. No warning finger board admonishing him, as he rushed on, that he was on the wrong road, availed to turn him back. He had started for a goal and he must reach it. At length it is won and he exclaims, "when the Constitution gives Congress a power, it also confers all powers that are either convenient or necessary to carry the delegated power into successful execution." In other words unconstitutional means may be employed to execute a constitutional power. Congress has "the power to raise and support armies," thereofre it may quarter them upon the citizens. Congress has the power to "make the rules for the government and regulation of the land and naval forces," therefore it may punish the deserter by robbing him of his citizenship, without a trial and conviction by due process of law. The Constitution prohibits the quartering of troops upon the citizen. It is equally emphatic in its denunciation of all attempts to rob him of his life, liberty and property, except by the judgement of his peers or the law of the land. Yet because these are convenient and may at times be necessary means to execute the delegated powers above quoted, the learned counsel argues that such means may be properly and constitutionally used. This argument makes the Constitution a felo de se. What can be more illogical and absurd than to make the incidental power stronger, and give it a wider sweep, than the substantive power? Yet to such desperate straits is the counsel driven, in order to justify the construction which he claims for the act of Congress. We will not attempt to follow the gentleman further in his latitudinariansim, but will content ourselves with a brief elaboration of the following propositions:

1st. The right to regulate suffrage, and to prescribe the qualifications of electors, is a State right, and Congress has no power either directly or indirectly, to interfere with or impair that right.

2d. The act of Congress of the 3d of 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 supposed offenders, before and without a trial and conviction by due process of law, and therefore is in direct antagonism to the bill of rights.

4th. The act is in conflict with the Constitution of the united States, because in disfranchising the citizen without making any provision for the trial and conviction of the offender, Congress has usurped the exercise of judicial authority.

No one, we presume, will doubt that before the Federal Constitution was adopted and the Union was formed, all governmental power was in the States. By adoption of the Constitution a division was made of this power, and certain portions of it were delegated to the United States the residuum remaining in the States except so far as it was extinguished by express prohibitions upon the States. Thus, the Constitution of the United States declares, "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people."--We have thus the Constitutional fact, that the States are to exist concurrently with the Federal Government having certain powers beyond the control of the United States, for they or the people are expressly declared to be possessed of all powers not delegated to the Federal Government, or expressly prohibited to them. It will also be admitted that whilst the United States are absolutely sovereign over all subjects delegated to them, yet, their jurisdiction being derivative, is necessarily limited. We have then these two Constitutional facts:-- 1st. States are to exist concurrently with the United States, having a class of subjects exclusively within their dominion, and beyond the reach of Federal power. 2d. The Federal Government is to exist concurrently with the States, having an absolute and sovereign control over all maters delegated to it. Let us assure ourselves of the correctness of these propositions, by a few quotations from the judgments of the learned court: In Sharpless vs. the mayor of Philadelphia 9 Harris 160, J. Black said, "In the beginning the people held in their own hands all the power of an absolute government, the transcendent powers of parliament devolved on them by the revolution (1 Bald 220; 8 Wheaton 584; 2 Peters 656). Antecedent to the adoption of the Federal Constitution the power of the States was supreme and unlimited, (3 Serg. de Rawle, 68). If the people of Pennsylvania had given all the authority which they themselves possessed, to a single person, they would have created a despotism as absolute in its control over life, liberty, and property, as that of the Russian autocrat.--But they delegated a portion of it to the United States, specifying what they gave and withholding the rest. The powers not given to the government of the State with certain limitations and exceptions expressly set down in the State Constitution. The Federal Constitution confess powers particularly enumerated; that of the State containing a general grant of all powers not excepted. The construction of the former instrument is strict against those who claim under it; the interpretation of the latter is strict against those who stand upon the exceptions, and liberal in favor of the government itself.--The Federal Government can do nothing, but what is authorized expressly or by clear implication; the State may do whatever is not prohibited." In the same case, on page 179, the present Chief Justice said, "The Federal Constitution sprung from the experienced necessities of the States of the confederacy, and was formed out of powers specifically granted and enumerated by the people. To the extent of the powers granted, this instrument restrains the sovereignty of the States, but the powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively or to the people. Because the people are more largely represented in the State government, than in the national; and because the powers granted to the Federal Government are in derogation of State rights, the rule of strict construction as applied to these grants is obviously conservative and just, though no universally admitted. The people are the source of all political powers.--They enumerate those they grant to the Federal government, and those they reserve from State government. The Legislative power of the States extends to all subjects properly legislative, not found in or the other of these enumeration's, and the only question additional to those already stated, that can arise on the constitutionality of a State law is, does it contravene the grants in the Federal Constitution?"

In Kneedier et al vs. Lane et al 9 Wright 258, Chief Justice Woodward said, "It is impossible to study our State and Federal Constitutions, without seeing how manifestly the one was designed to guard and maintain the personal and social rights of the citizen; the other to take care of his external relations. Nurture, education, property, home, wife and children, servants, administration of goods and chattels after death, and a grave yard in which to sleep the sleep of death, these are among the objects of State solicitude, in the protection of which the State provides civil authorities and back of them as the posse comitatus and the militia to make the civil administration effectual." In the same case, on page 264, Mr. Justice Thompson said, "The Constitution of the United States defines and enumerates the powers of the general government, and limits them by the solemn declaration that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people; the government established by the Constitution is, therefore, a limited government, beyond the limitations of which including necessary incidents of expressly granted powers, all exercise of authority by Congress is mere usurpation. We should remember this in construing the Constitution; and we should remember also, that the entire machinery of government provided by it, was poised between checks and balances, designed not only to prevent it from transcending its orbital limits, but to guard against oppression from other sources. The objects to be attained, as declared in the preamble, must be kept in view, when we are called to expound its provisions; and we are bound to construe it, so as to preserve and advance them all. The purpose as declared in the preamble was "to form a more perfect Union, establish justice [,] insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity. Each of these objects are supposed to be secured by the Constitution, and no one of them must be overlooked in a too eager desire to lend a supposed efficiency to some other. To do so would endanger the whole. To provide for the common defense is one purpose avowed for establishing the Constitution, and the duty devolves on Congress to execute it; but it must not be executed in such a manner as to encroach on the paramount purpose of securing the blessings of liberty to ourselves and our posterity also declared. That its one instance to show that no legislation, nor no construction, can be valid or sound which is not in harmony with the Constitution."

In the same case, page 277, Mr. Justice Strong said: "It is said, and truly said, that the federal government is one of limited powers. It has no other than such as are expressly given to it, and such as (in the language of the Constitution itself) 'are necessary and proper for carrying into execution the powers expressly given.' By the tenth article of the amendments, it is ordained that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. Of course there can be no presumption in favor of the existence of a power sought to be exercised by Congress. It must be found in the Constitution."

Keeping firmly fixed in our memories these emphatic enunciations of the true principles of construction of the federal and state Constitutions, let us look into the Constitution of the United States and learn what powers the states have delegated to the national government. We read therein, that Congress shall have power,

"To lay and collect taxes, duties, imports and excises. To pay the debts and provide for the common defence and general welfare of the United States."

"To borrow money on the credit of the United States."

"To regulate commerce with foreign nations and among the several states and with the Indian tribes."

"To establish an uniform rule of naturalization and uniform laws on the subject of bankruptcy throughout the United States."

"To coin money, regulate the value thereof and of foreign coin, and fix the standard of weights and measures."

"To provide for the punishment of conterfeiting the securities and current coin of the United States."

"To establish post offices and post roads."

"To promote the progress of science and useful arts by securing for limited terms authors and inventors the exclusive rights to their respective writings and discoveries."

"To Constitute tribunals inferior to the Supreme Court."

"To define and punish piracies and felonies committed on the high seas and offences against the laws of nations."

"To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water."

"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."

"To provide for the organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States."

"To exercise exclusive legislation in all cases whatsoever over such districts (not exceeding ten miles square) as may by cession of particular states and the acceptance of Congress, become the seat of government of the United States."

"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States, or in any department or office thereof."

This is the chart of powers granted by the states to the federal government, and besides those therein enumerated, the counsel now addressing the court knows of no others.

The prohibitions upon the states are as follows:

SECTION 10. (1) "No state shall enter into any treaty, alliance or confederation; grant letters of marque and reprisal, coin money, emit bills of credit, make anything but gold and silver coin a tender of payment of debts; pass any bill of attainder ex post fact law, or law impairing the obligation of contracts or grant any title of nobility."

(2) "No state shall without the consent of Congress lay any imposts or duties on imports and exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any state on imports or exports shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of Congress. No state shall without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or contact with another state or with a foreign power, or engage in war unless actually invaded, [UNCLEAR] such imminent danger as will not admit of delay."

It will thus be observed that outside, and beyond the powers delegated to the federal government and prohibited to the states, there is a large and undefined class of subjects, which relate to the domestic economy and individual rights of the people, over which the states are expressly declared by the Constitution of the United States to have absolute jurisdiction and complete control. In searching for the domain of a federal and State jurisdiction respectively, we must not forget the rules of interpretation, to which we have already called the attention of the court. To which may be added the canon laid down by Chief Justice Black in Commonwealth vs. Hartman, 5 Harris 119--in the following emphatic language: "It is to be remembered that the rule of interpretation for the state constitution differs totally from that which is applicable to the Constitution of the united States. The latter instrument must have a strict construction, the former a liberal one. Congress can pass no laws but those which the Constitution authorizes either expressly or by clear implication; whilst the Assembly has jurisdiction of all subjects in which its legislation is not prohibited. The powers not granted to the government of the Union are withheld; but the State retains every attribute of sovereignty not taken away."

Now, we look in vain among the powers delegated to Congress for one which gives the Federal Government authority to regulate the right of suffrage, or to prescribe the qualifications of electors in the States,--Among the prohibitions none are to be found which take away from the states the jurisdiction over this subject.

The only power given to Congress over the question of citizenship, is that which confers the right "to establish an uniform rule of naturalization throughout the United States." The fact that this power, and this alone, was conferred upon Congress, is pregnant with the strongest negation of any other power to regulate the status of citizenship or the right of suffrage, either directly or indirectly in the States. Expressio unius est exclusio alteriusexpressum facit [UNCLEAR] tacitum. The question is not, (for that is admitted) has Congress the right to legislate an alien into a citizen? But the question is, can Congress by a legislative act, transform a citizen into an alien? Can Congress by the word of its power, strip a citizen of Pennsylvania of the high prerogatives of a freeman, and sentence him unheard and without a trial, to a vassalage more ignominious than that of a Russian serf? The statement of this monstrous proposition furnishes its own sufficient answer. The argument of the learned counsel on the other side assumes that there is such a thing as citizenship of the United States, wholly separate and independent of a state citizenship; that Congress has such control over United States citizenship, as to be able, at will, to deprive its possessor of the immunities and privileges that appertain to it; that the Act of Congress, of the 3d of March, 1865, "stripped deserters of the franchises of the United States citizenship, and made them aliens; and that inasmuch as the Constitution of Pennsylvania declares that only citizens of the United States shall enjoy the right of suffrage within her limits this man, (Mr. Reilly) by virtue of this act of Congress, ceased to be a qualified elector of Pennsylvania. Such (if we understand the gentleman,) is the process of reasoning, on the part of the counsel for the plaintiff in error. This argument seems at first blush, to be plausible, but a little consideration will disclose its heresy. By what process does a native Pennsylvanian become a citizen of the United States? No naturalization is necessary in such a case, and no Congressional action is required.--Birth in Pennsylvania makes him a citizen there, and through his State citizenship and in consequence of it, he becomes a citizen of the United States. The one citizenship is inseparable from and dependent upon the other. The same blow that strikes the one down destroys the other also. It is impossible for Congress to deprive deserters of the capacity to hold any office of trust or profit under the United States, or of the privilege of exercising any rights of citizens thereof, without at the same time robbing them of the prerogatives of State citizenship. Now, the able counsel on the other side, seem to appreciate the difficulty of maintaining the doctrine that Congress, by a direct exercise of power, can enter the domains of the State and regulate questions of State citizenship. They appear to shrink back from the bold assertion of the dogma that Congress can directly interfere with the right of Pennsylvania to regulate the qualifications of her own electors. But they seek to screen themselves from the odium attaching to such a heresy, by erecting a thin breastwork out of a United States citizenship, distinct and distinguishable from a State citizenship, and from behind this barrier they cast their missiles at the rights of the States. They say, we will not attempt to interfere with your State citizenship eo nomine, but we will take from you your immunities as a citizen of the United States, and our State Constitution then comes to our rescue and declares that you thereby cease to be qualified as an elector. If it be true, as we believe, and we have tried to show that a native born citizen becomes a citizen of the United States only through his state citizenship, then this act of Congress, by depriving deserters of the prerogatives of citizens of the United States, makes a direct assault upon the qualifications of electors in the States. We submit that it is unconstitutional and void, because no power to do this thing was ever delegated by the State to the federal government. But it is argued that Congress may "make rules for the regulation of the land and naval forces." That discipline is necessary for the preservation of armies; that desertion is ruinous to their efficiency and existence; that therefore, Congress may define what shall constitute desertion, may prescribe its punishment, and as a part of the pains and penalties, may inflict disfranchisement and loss of citizenship. It is said that this reasoning makes the act constitutional; we submit that it does not. We affirm that Congress cannot, even by way of punishment for crime, attach such disqualifications to the elective franchise in the States, as to entirely deprive any class of citizens the right to vote. If Congress can inflict this punishment for desertion, it may go on and define new offenses ad infinitum, each of which shall be punished in the same way. Thus it may declare, that to speak disrespectfully of the President of the United States, or to call in question its own infallible wisdom, shall be sedition. It may declare, that to deny the equality of the negro or to deprive him of any of the rights enjoyed by the white man, shall be a crime against "the higher law," and all these offenders shall become aliens and cease to be voters. It was one of the vices of the conscription law that, whilst the Constitution recognized the substantive and independent existence of the militia of the States, it allowed draft after draft to be made from this State force until the whole came to be swallowed up in what was called "the national forces." So, by allowing Congress to punish desertion by loss of citizenship, you invite a similar punishment for other offenses, until one class after another is deprived of the elective franchise and the State lies prostrate at the feet of Congress, without voters and without citizens, having only a name to live, whilst in truth it is dead. It may be said that this is putting an extreme case and pushing the consequences of such legislation to the verge of absurdity. But when a power not expressly conferred upon Congress is sought to be inferred from some general power of the Constitution, and an examination discloses the fact that the power is capable of such abuse as to enable those who exercise it to subvert the government itself, we are furnished the strongest argument against the existence of such inferential power. To say that a power has recently been discovered which is potent enough to strike down State rights, and wipe out State lines when exercised to its fullest capacity, is simply to assert that the Constitution our forefathers framed has been changed by some remarkable revolution. Who would deny that our whole system has been changed, if Congress can stretch forth its sceptre over the States and issue its edict that no man shall vote until he attained the age of thirty, or the black man shall vote and the white man shall not vote in Pennsylvania. No less is the usurpation which unasks its designs under the specious covering of a punishment for crime.

AGNEW, Judge--You have been arguing a question of power. We may agree that the law, with regard to desertion, was impolitic, but that is not the question of power. Congress has the power to establish post offices and post roads. Robbing the mail is an offence, and punished even to the extent of death. Do you think that Congress has the power to disfranchise the mail robber? Rather, when Congress is in the exercise of its undoubted power, may it not extinguish the right of franchise as well as any other, when in such exercise of power, as a consequence entailed. They may extinguish private rights, including the right of life."

Mr. SHARPE--"Certainly Congress may for some offences prescribe the punishment of death. But Congress cannot change or increase the punishment of crime, after it has been committed. Congress cannot make an act which was innocent, at the time it was done, a crime, and punish it as such."

AGNEW, Judge--"It may be ex post facto, but I am asking you only a question of law."

Mr. SHARPE--"I think Congress cannot take away the right of suffrage as a punishment for crime. In doing so, it is interfering with those matters, over which the Constitution gives the States exclusive and absolute dominion. Congress cannot do indirectly what it cannot do directly. Your Honor would not pretend that Congress can directly by legislation, prescribe the qualifications of electors in the States. Whilst your Honor will no doubt concede this much, I go a step further and submit that Congress cannot add even as a punishment for crime, disqualifications to the elective franchise, strange and unknown to the Constitution and laws of Pennsylvania. ["]

AGNEW, Judge--"I understand that."

WOODWARD, C. J.--"I believe that Congress has never punished the mail robber until convicted, or indeed no other criminal. Therefore it does not follow, that if Congress has the constitutional power to deprive a citizen of his citizenship, that they may do so without conviction. Rather Congress has not the power to take away the right of suffrage without trial."

STRONG, Judge--"Conceding that Congress has the power to inflict punishment, is it not true that the right of suffrage is inseparable from the State government itself. Is not therefore any action of Congress which takes away the right of suffrage a direct blow at States rights."

Mr. SHARPE--["]Exactly. As I said before, Congress may go on and disfranchise class after class of voters, until the State has no electors left."

AGNEW, Judge--"Well, if we all commit crime, I suppose we will."

Mr. SHARPE--["] One word more upon this general head and we shall leave it. Some information may be obtained from the political history of the times, in regard to the views which the moral latitudinarian constructionists entertain upon this right of Congress to interfere with the elective franchise in the States. There is by no means a small school of our statesmen who insist that Congress has the power and ought to exercise it of declaring who shall vote in the States that seceded from the Union. But the chief corner stone of this asserted power, is the dogma, that these States have forfeited their rights, and are now to be treated as conquered provinces. The very basis of the doctrine is pregnant with the affirmation that it has not and can not have any application to a State that never seceded. Pennsylvania has never attempted to secede, she never lost her status in the Union, and therefore upon the theory of this class of statesmen, Congress cannot usurp such a right in this Commonwealth. Again, the specious pretext which is set up in favor of this act of Congress, that disfranchisement is entailed upon the offender as a punishment for his crime, is triumphantly swept away by the recent congressional action of many of the same congressmen who passed the act in controversy.--This ultra school of politicians, we presume will not insist that northern deserters are worse that southern traitors. If deserters could be constitutionally disfranchised by an act of Congress, it is certainly fair to suppose that traitors might be disposed of in the same way, by the same summary process. Yet it has been discovered since the passage of the act of Congress of the 3d March, 1865, that rebels cannot be robbed of their citizenship without an amendment to the Constitution of the United States. Two thirds of the Congress and three fourths of the State legislatures must all concur before rebels can be made aliens. Yet the counsel for the plaintiff in error insist that a simple utterance by a bare majority of Congress can strip northern deserters of the immunities of citizenship, consign them to slavery, doom them to infamy, and set them up as a mark for the finger of scorn to point at. If this be true, I had rather be a southern traitor than a northern deserter.

2nd. Our second proposition is: That this act of Congress is an ex post facto law, and, therefore, violates the Federal Constitution. It is apparent from the case stated that the person whom it sought to disfranchise as drafted into the military service of the United States on the 19th of July, A. D. 1864, and failed to report to the Provost Marshal of the 16th district of Pennsylvania, in obedience to the draft notice. The act of Congress in dispute was approved on the 3d of March 1865. It is clear from this statement of facts, that if Henry Reilly was guilty of any offence at all, he committed it some months prior to the passage of the act of Congress. If therefore the law is ex post facto, within the meaning of that phrase in the Constitution, it is wholly void and inoperative; because the Constitution declares in unmistakable language, "that no bill of attainder or ex post facto law shall be passed."

We have an authoritative exposition of what constitutes an ex post facto law from the Supreme Court of the United States made at an early day. In Caleden and wife vs. Bulland and wife, 3 Dallas, 300 Judge Chase defined an ex post facto law to be one which, 1st, Aggravates a crime, or makes it greater that it was when committed. 2d, Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed. 3d, Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence to convict the offender. If this act of Congress is open to all or any of these faults, it is ex post facto, and therefore void and of no binding force. Does it aggravate the crime, and change the punishment making it greater than before. We submit that it does. The crime we are considering is not that of desertion, but simply a neglect to report in answer to a draft notice. Although a majority of this court held in Kneedler et al vs. Lane et al 9 Wright, 238, that a defaulting drafted man is a deserter, and may be punished as such, we cannot rid ourselves of the idea that there is a wide distinction between the two classes of offenders. whilst the deserter was usually tried and sentenced by a court martial, the defaulting drafted man was simply arrested and put into the military service.--The military authorities made this distinction, and comported with the common sense view of the matter. But the counsel argue that defaulting drafted men having been declared deserters, and amenable to the penalties of desertion, might have been shot to death by musketry under the law, as it existed prior to the 3d of March, 1865, and that therefore an act which punishes simply with forfeiture of citizenship, neither aggravates the crime, nor enhances its punishment. But we appeal to the gentlemen to answer whether a non-reporting drafted man was ever shot to death, or punished in the same manner as deserters from actual service. If such cases have ever occurred they have never come to our knowledge. But supposing for the sake of the argument, that defaulting drafted men stand in the same guilt with deserters from actual service, and may pass under the same condemnation, yet the punishment is not necessarily death; it may be death, or such other punishment as a court martial may choose to inflict. The punishment is, therefore, discretionary. and the exercise of that discretion would ordinarily be controlled by the peculiar circumstances of each individual case. A careful reading of the act of Congress will show, however, that this option is to a great extent destroyed and taken away. A deserter from actual service and a non-reporting drafted man are declared to be equally criminal, and must be punished at least with loss of citizenship. A less penalty than disfranchisement, can no longer be pronounced. Can it, therefore, be argued with any degree of candor that this act does not aggravate the crime, and increase its punishment. I oppose to the dictum of the gentlemen, the language of the law itself, which declares, "that in addition to the other lawful penalties of the crimes of desertion from the military or naval service, all persons who have deserted the military or naval service of the United State, who shall not return to the 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.

STRONG, Judge--"What is the offense provided for in the act of 1865. Is it or is it not an offense to be committed after a certain time shall have elapsed, that is sixty days after the proclamation should be issued?"

Mr. SHARPE--"I think not, sir, it is true that the man who does report himself as commanded by the proclamation, shall be relieved from punishment. But suppose he does not report and the sixty days have expired, what shall he be punished for? Not for failing to report, and to take advantage of the proclamation, but for his prior desertion. This sixty days proclamation was meant to furnish an amnesty to those who should avail themselves of it. A proclamation of amnesty presupposes that somebody has committed crime, and is liable to punishment. The President's amnesty proclamation, issued to those engaged in the rebellion, extended pardon to such as could and did avail themselves of it. Those who refused to partake of its grace and were and still are liable to pains and penalties, not because they rejected the amnesty, but because they are supposed to have committed treason. So with the proclamation provided for in the act of Congress, those who are obedient unto it shall save themselves, those who stand out against it are still liable to condemnation and punishment for their old offenses."

READ, Judge--"The amnesty proclamation leaves the party, if he does take advantage of it, just where he was. But if he does not take advantage of this proclamation, then it prescribes an additional punishment for not taking advantage of it."

Mr. SHARPE--"But may it please your Honor, suppose that he never saw or heard of the proclamation?["]

READ, Judge--"That don't make any difference; it cannot make any difference."

WOODWARD, C. J.--"There was no conviction in this case."

Mr. SHARPE--"No sir; no man can be punished for desertion unless convicted.--This proclamation says that if the man does not return within sixty days, he shall be deemed to have forfeited his citizenship."

WOODWARD, C. J.--"Then you say that this act of Congress itself is a conviction of the offender.["]

Mr. SHARPE--"Yes sir; Congress pronounces the sentence without affording an opportunity to the condemned to be heard. It judges, it convicts, and it punishes, thereby arrogating itself judicial authority, in violation of the Constitution."

But if possible the act is still more obnoxious to the objection of being ex post facto, from the further fact that it alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender. Prior to the passage of the act no one could be convicted of desertion without a trial, and no evidence was sufficient to convict except the voluntary confession of the party, or such other testimony was needed as to convince the court beyond all reasonable doubt of his guilt. Now it is pretended that the mere failure of a drafted man to report at the headquarters of the Provost Marshall, and an ex parte record of that fact, made out there in his absence, furnishes ample proof of guilt. It is upon such evidence freemen are to be punished with the loss of a boon of more value to the honorable mind than life itself. Who will doubt for a moment that the rules of evidence have thus been changed, and that ex parte statements and hearsay testimony have been substituted for that full and ample proof which is attained by the party when he is confronted with the witnesses and has had an opportunity to sift the few grains of truth from the chaff of falsehood, by cross examination.

3d. This brings us to our third proposition, which is that the act of Congress proposes to inflict and impose pains and penalties upon offenders, before and without a trial and conviction, and therefore is in direct antagonism to the bill of rights. Article 5th of the amendments to the Constitution declares, "that no person shall be held to answer for a capital or otherwise infamous crime unless a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when in actual service, in time of war or public danger, nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself, nor to be deprived of life, limb or property without due process of law."

Article 6th declares, "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, which district shall have been ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

Our forefathers had drunk deep of the bitter waters of tyranny. They had staked life, liberty and property upon the issue with despotism. The struggle was fierce and bloody and its result often doubtful. At the last cloud of war rolled away and the sunlight of victory illuminated their banners. When they came to establish a government, that would secure the blessings of a liberty to themselves and their posterity, they were not unmindful of the lessons of their own experience, and regarding these provisions as necessary and essential bulwarks against the aggressions of power they incorporated them into the organic law.

It is the peculiar infamy of this act of Congress that it seeks to tear down and scatter to the winds all these safeguards of life, liberty and property. It is contended in this case, that Congress meant that the failure of a drafted man to obey a draft notice, and report in obedience thereto, to a Provost Marshal[l] as and shall be conclusive evidence against him of the crime of desertion, and that he shall be disfranchised in consequence thereof, before without the ascertainment of his guilt by any court civil or military . This is shocking to every instinct of humanity, a [UNCLEAR] upon the jurisprudence of our age, a libel upon that innate sense of justice which has always been supposed to be a peculiar possession of the American people. If such be the true construction of the act of Congress, then the stamp act, and the duty upon tea, which brought on the American revolution are in great danger of being made respectable enactments. Is a citizen to be condemned unheard? Is he not to have a hearing? Shall he not be confronted with the witnesses against him? Shall he not enjoy the rights of a public and speedy trial?--Shall he not have compulsory process to compel the attendance of his witness, and have the assistance of Counsel? Can he be deprived of his life, liberty or property without due process of law? Are these rights mere myths--the fancies of a disordered brain? Or do they have a real and substantial existence. I beseech my brethren on the other side to look into the Constitution of their country. I implore them to take it down from the shelf, where they have hid it for the last four years, and after brushing the dust from it, to unroll it, and study it. What say you, my brethren, do you find these rights in the sacred parchment? If so, does not this act of Congress stand already condemned in your eyes, as well as before the whole world. What provision does it make for a trial? Who is to bear, to judge, to condemn and to pass sentence of disfranchisement? The law is as silent as the grave, upon all these important and vital questions. You might as well expect a dead man to answer you, as to hope for a reply from this law, thus "dead in trespasses and sins." But say, our friends on the other side, the act contemplates a hearing, and fixes a competent tribunal. This is a trial about the right of suffrage. Therefore, boards of election officers shall examine into and decide these questions. But it is to be remembered that whilst the right to vote is incidentally involved in the investigation, there is still a graver question at issue, is the man guilty of desertion? This primary question must first be met and decided before you reach the question of the right to vote at all. Who made boards of election officers judges in the questions of guilt or innocence? To decide that a man has not a right to vote, under this act of Congress, is first to decide that is a criminal, a deserter, and therefore liable to punishment. But it is argued that the boards of election officers do decide upon the qualifications of electors. In some cases they do. But in no case have they a right to do so, and where their decision also involves a judgement upon the guilt or innocence of crime, of the voter. And where the loss of suffrage is simply a result following a previous conviction of the offender. There are two grave and conclusive reasons why boards of election officers cannot try these questions [UNCLEAR] 1st. It is impracticable for them to do so. 2nd. They have no recognition in the Constitution as juridical tribunals, and their judgements would simply be tyrannical edicts, and not the deprivation of the of the citizen of his life[,] liberty and property by due process of law. The impracticability of boards of election officers entering into the examination of such cases must strike every one at first blush. If there is to be a hearing at all, both sides must be heard. The defendant has the constitutional right to have compulsory process to compel the attendance of his witnesses. Suppose they refuse to attend.--Can election officers issue the subpoena and attachments to compel them to appear and testify? We know of no such authority. The case is urgent, it must be decided at once. If the defendant's witnesses are absent, will the election officers proceed to trial, and condemn upon the suborned testimony of government detectives and informers? If so, the hearing is a farce, and the trial is a mockery of justice. But suppose the witnesses on both sides are present, and the parties are ready for trial. The Constitution gives the accused "the right to have comment for his defense." The Government will also have the right to be heard by her prosecuting officer. Suppose not a single case only, but ten, twenty or a hundred such cases arise before the same election board, how are they all to be disposed of in one day. And what in the meantime becomes of the other hundreds of voters who are waiting at the polls for an opportunity to cast their ballots. It seems to me that no sensible man ought to argue that it is practicable for election officers to perform such duties. But this objection goes simply to the expediency of establishing such a tribunal. Above and beyond this is the fundamental objection, that election boards have no standing in the Constitution for the trial and conviction of offenders. A man shall not only, not be condemned unheard, but he shall not be condemned at all, unless by due process of law. This doctrine is as old as magna charta itself.--The hearing and trial are worth nothing unless before a constitutional tribunal. It is the deprivation of life, liberty and property, without a trial by some of the tribunals recognized by the Federal Constitution that is so emphatically condemned. Will my learned friends allege that boards of election officers can try men for their lives, deprive them of their property, or rob them of their liberties? Is the judgment of such a tribunal, upon such questions, of any more vitality in this free land, then the edict of the Doge of Venice?

Due process of law here means the judgement of a competent and constitutional court. "Except in cases arising in the land or naval forces, or in the militia, when in actual service in times of war or public danger," the trial must be by jury. In the cases within the exception the trial may be by court martial. We cannot without difficulty reconcile ourselves to the idea that a man who refuses to go late to the army, is, in spite of his refusal, to be considered in the army, for purposes of a trial and punishment by court martial. Respect for the doctrine of stare decisis [UNCLEAR] us not to repeat our objections in this presence. Admitting then that the non-reporting drafted man, is to be treated as though he were in actual service, he can neither be tried nor punished except by the judgment of a court martial. Until thus tried and convicted, he is presumed to be, and in the eye of the law is an innocent man. No arbitrary or ex parte hearing and judgement of an election board can change this legal and constitutional fact. When the record of the trial and conviction of a defaulting drafted man, either by a jury or his countrymen, or by a court martial, shall be produced before an election board, it will be time enough for it to decide upon the right of the condemned to have his vote.--Until then, their decision of the question is an officious and unconstitutional interference with the constitutional rights of the citizen and of no more weight than the judgement of the King of Dehorney [UNCLEAR].

I will read, not for the edification of the court, but for the instruction of my friends on the other side, the fierce denunciation of Judge Coulter, hurled at similar legislation in Brown vs. Hummell, 6 Barr, 61. "What then is the law of the land, as it relates to the protection of private rights? Does it mean bills of attainder in the shape of an act of Assembly, whereby a man's property is swept away from him without hearing trial or judgement, or the opportunity of making known his rights or producing his evidence? It certainly does not. It was to guard against such things which had been common in the reign of the Stuarts and their predecessors, and with which our forefathers of the Anglo-Saxon race were familiar, that these irrevocable and unassailable provisions were introduced into the Constitution. The law of the land does not mean acts of Assembly in regard to private rights, franchises and interests, which are the subjects of property and individual dominion. But it means what is clearly indicated by the other provisions of the bill of rights, to wit: the law of the individual case, as established in a fair and open trial, or any opportunity given for one in court and by due course and process of law. I am a Roman Citizen, were once words of power which brought the proudest pro-consul to a pause, when he was about to commit oppression; and the talismanic words I am a citizen of Pennsylvania, secures to the individual his private rights, unless they are taken from him by a trial, where he has a chance of being heard by himself, his counsel and his testimony, more majorum, according to the laws and customs of our fathers, and the securities and safeguards of the Constitution.--Sir Edward Coke defines the meaning of the words by law of the land, for they were used in magna charta, and have been sprinkled with the tears and blood of many patriots, to be a trial by due course and process of law. I do not therefore regard an act of Assembly by which a citizen of Pennsylvania is deprived of his lawful right as the law of the land. The first judgment upon earth was upon summons and hearing. Where art thou Adam? And hast thou eaten," &c., preceded the ejectment of Adam and Eve from their beautiful inheritance, the garden of Eden, and the proudest legislator may learn wisdom from such an example. It is against principle of liberty and common right to deprive a man of his property or franchise while he is within the pole of the Constitution, and with his hand on the altar, and give it to another without hearing and trial by due course and process of law. I oppose against it the majestic authority of this great people as reflected from the Constitution. But the most important of all our franchises, the fight of an elector and citizen cannot in a confused sense be called property. It is not assets to pay debts, nor does it descend to the heir or administrator. But who does not feel its value? and who, but would turn pale if he thought he could be deprived of it without hearing or trial, by act of assembly." If this eminent judge were to rise from his honored grave, and one were to tell him, that this very thing so bravely denounced by him, had been attempted by the American Congress, how his great heart would swell with indignation, and his eloquent tongue flash forth its fierce invective. Glancing around upon this bench, which he had once occupied, along with his illustrious compeers, now so worthily adorned by their and his successors, in pleading accents he would beseech my erring brethren on the other side, not to profane this sacred temple, by the presence of such strange Gods, and not to corrupt the true faith by such false doctrines.

4th. Time will not permit us to elaborate our fourth, and last proposition. We will content ourselves with simply stating it.--We allege that this act of Congress, is in conflict with the Constitution of the United States, because in disfranchising the citizen without making any provision for the trial and conviction of the offender, Congress has assumed the exercise of judicial power. The language of the section is, "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 forfeited their citizenship, and their rights to become citizens; and such deserters shall forever be incapable of holding any office of trust or profit under the United States, or of exercising any rights of citizens thereof."

No provision is made in the law for a trial and hearing. No tribunal is established for the decision of such cases. The punishment is not to follow conviction by any court or tribunal known to the federal Constitution. It is simply the announcing and pronouncing of a sentence by Congress. If so, then it becomes a palpable violation of the federal Constitution, because the 1st section of the 3d article requires the judicial power of the United States to be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish. The judges whereof shall hold their offices during good behavior and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office. For Congress to usurp the powers of the federal Courts and pronounce sentences without conviction, would then be as revolutionary as it would be for the federal courts to arrogate to themselves the powers of Congress. Such discord introduced into the governmental system would soon drive the spheres from their appropriate orbits. We submit therefore that the judgement of the court below was right and ought to be affirmed.

We have now discharged our duty in this great case; feebly and imperfectly it is true, but with the honest conviction that we are right. We are convinced that the measure of our weakness is most completely filled up by the ability of this Court. It is an honor sufficient to satisfy any reasonable ambition, no tow occupy a seat upon that bench. The five Judges who now compose this Court are now making precedents which will stand as juridical landmarks in all time to come. You have the high privilege of teaching our children how an upright judiciary, amid all the temptations of arbitrary power, could stand unmoved by the arts of flattery, or the cajolery of those in power, fast by the Constitution as our fathers left it. The eyes of the whole people of this great Commonwealth are fixed upon this Court. They have nailed their faith to you and believe that you will be now, as in times past, the guardian of their liberties. The pen that writes the judgement of this Court enfranchising and disenthralling thirty thousand citizens of Pennsylvania will shed an additional lustre upon our jurisprudence, and will write an epitaph of true renown for its author more enduring than monuments of brass and marble.

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The Issue Made Up Between the President and Congress
(Column 3)
Summary: After praising the President for the message he delivered to Congress following the passage of the Constitutional Amendment, the editorial discusses the motives behind the Radicals' efforts to ratify the measure as quickly as possible, a move it says "reveals the weakness of the Radical faction."
Slow Justice
(Column 5)
Summary: Reports on the failed efforts of Senator Poland to indemnify loyal residents of the South who furnished supplies to the Union armies during the war.
Origin of Article: National Intelligencer
Full Text of Article:

Another effort was made in the Senate by Mr. Poland to have a small measure of simple justice meted out to loyal men in the South, who, upon the faith of the Government for which they suffered, and to which they remained loyal under the most trying circumstances, furnished supplies to the Union armies in the South during the war. The measure was bitterly opposed, with characteristic illiberality, by Messers. Howard and Wilson. The former was posseses with the fanatical idea that everybody in the South must even yet necessarily be treated as "an alien enemy." He never heard of a belligerent paying for stores taken from an enemy. The Senator could not have been familiar with the manner in which our war with Mexico was conducted. Then, his private property of every description was respected and protected; even the smallest act of pillage received exemplary punishment in our army, all supplies taken for the use of the army, except the property of the Mexican Government, were pain for in cash. This was the principle upon which the recent war was to have been conducted. The only departure from it was the distinction made between the property of loyalists and rebels. The idea of repudiating the debts due to the loyal men of the South, for supplies furnished by them to the Union army, was never entertained until after the conclusion of the war. Mr. Trumbull has a correct idea upon this subject. It cost something to be a loyal man in the South during the rebellion; and to furnish supplies to the Union army was treated by the rebel authorities as an act of treason, and invariably subjected the loyal men who did so to imminent danger, not only to their property, but to their lives. In furnishing these supplies the loyal men of the South exhibited an hundredfold more patriotism than the Northern contractors, who grew fat upon their contracts without exposure to any danger or privation whatever. There are no creditors of the Government who so justly merit full and speedy payment of their claims as these Southern loyalists, who literally risked their lives, their fortunes, and their sacred honor to serve the Government in the hour of need. The settlement of these claims has been already too long deferred by the arbitrary and iniquitous ruling of the War Department. Th opposition offered in Congress to the speedy adjustment of such claims is a convincing proof of the insincerity of the profession of the Radicals of friendship to the Southern loyalists.--National Intelligencer.

A Pitiful Whine
(Column 5)
Summary: The editorial criticizes the Repository for its equivocal reaction to the judgement issued in the Deserter Case.
Origin of Article: Repository
Editorial Comment: "The article in last week's Repository on the decision of the Supreme Court in the "Deserter Case," is neither honest nor manly. We did not expect so much backing and filling in a journal boasting the independence of the Repository. It admits that this decision is a "universal amnesty to all" alleged deserters, and adds: "Viewed in any aspect the case can be presented, we must accept the conclusion that the practical decision is that the deserters cannot be disfranchised or punished." And yet after this apparently frank admission, it goes on to say:"
Full Text of Article:

We presume that the effect of the decision in our political struggles will not be material. On the one side there is an act of Congress and an act of the legislature, and on the other side a decision of a divided State Court, and it is probable that deserters will be disfranchised in some districts and vote in others, as heretofore. While there is a palpable conflict of authority upon a question so vital, and justice pleads on the one side against perfidy shielded by legal technicalities on the other side, uniformity of practice under the law cannot be attained. The people of Pennsylvania, as a rule, are proverbially law-abiding, and they will cheerfully yield their convictions and their sense of justice to the final adjucation of any question.

Just what this muddled paragraph means we confess ourselves unable to determine.--Does it mean that the Republican election officers, under the teachings of their party leaders, will disfranchise alleged deserters in defiance of the decision of the Supreme Court, and thereby become exceptions to the "rule" that the "people of Pennsylvania are proverbially law-abiding; and that they will cheerfully yield their convictions and their sense of justice in the final adjucation of any question." Let us have an explanation, Colonel.

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Local and Personal--Supreme Court--Franklin County
(Column 1)
Summary: The Supreme Court sitting at Wilkesboro has announced decisions in the following cases from Franklin county--Miller vs. Hartie, judgement affirmed. Heiser vs.McGrath, judgement reversed. Noel vs. Karper, Clark vs. Trindell, judgement reversed. Wister vs. School Directors of Antrim township, judgement affirmed.
(Names in announcement: Miller, Hartie, Heiser, McGrath, Noel, Karper, Clark, Trindell, Wister, Judge King)
(Column 5)
Summary: On June 24th, John R. Orr and Maggie, daughter of Matthew McKee, were married by Rev. Thomas Orr.
(Names in announcement: Rev. Thomas X. Orr, John R. Orr, Maggie McKee, Matthew McKee)
(Column 5)
Summary: On June 28th, Thomas R. Durbarow and Anna M. Guthrie were married by Rev. S. H. C. Smith.
(Names in announcement: Rev. S. H. C. Smith, Thomas R. Durbarow, Anna M. Guthrie)
(Column 5)
Summary: On Jan.6th, Jacob Jones and Sarah Davies were married by P. S. Hamman, Esq.
(Names in announcement: P. S. HammanEsq., Jacob Jones, Sarah J. Davies)
(Column 5)
Summary: On June 21st, Christian B. Camp and Elizabeth D. Kriger were married by P. S. Hamman, Esq.
(Names in announcement: P. S. HammanEsq., Christian B. Camp, Elizabeth D. Kriger)
(Column 5)
Summary: On June 28th, Abraham Bitner, son of Jacob Bitner, died. Abraham was 13 years old.
(Names in announcement: Jacob Bitner, Abraham Bitner)

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