approved March 3d, 1865, it was provided that "in addition to the other lawful penalties of the crime of desertion from the military or naval service of the United States, 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 right 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 right of citizens thereof." The constitutionality of this act was brought in question before the Supreme Court of Pennsylvania, in the case of Huber vs Riely, (53 Pa. State Reports, 112, Brightley's Election Cases, 69.) The case was that of a citizen whose vote was refused by the judges of election, upon the ground that having been regularly drafted, he had failed and refused to report, and never did report for muster.

It did not appear, nor was it alleged, that the person whose vote was rejected had ever been tried or convicted upon the charge of desertion. The officers of the election assumed the right to consider and decide upon such evidence as was presented to them at the polls, the question of the voter's guilt or innocence, and having tried that question in their own way, and held the accused to be guilty, they refused his vote. It is manifest that such a proceeding as this is open to very grave objections aside from any questions as to its constitutionality.

The constitutionality of the act was assailed, upon these grounds, viz:

1. That it was an ex post facto law, imposing additional punishment for an offense committed before its passage.

2. That it was an attempt on the part of Congress to regulate suffrage in the States, or to impair it.

3. That the act proposed to inflict pains and penalties upon offenders without a trial and conviction by due process of law, and that it was therefore prohibited by the bill of rights.

Upon the first point it was held 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, was not a penalty for the original desertion, but for persistence in the crime, and a refusal to report for muster and duty when commanded so to do. Upon the second point, the court held that the act was not an attempt to regulate suffrage in the States, but simply an exercise on the part of Congress of its power to "deprive an individual of the opportunity to enjoy a right that belongs to him as a citizen of a State," which was held to be a different thing from taking away or impairing the right itself. The Federal Government, in an exercise of its right to imprison a citizen of a State for crime, or to impress him into the military service, and remove him from the State, may deprive him of the opportunity to vote, and no doubt the forfeiture of citizenship, and of all its rights, may be affixed as a penalty, for the commission of a crime against the United States.

Upon the third point the Court held that the act

could not be upheld as constitutional, if it did in fact impose penalties, before and without a trial by due process of law; and by due process of law is meant "the law of the particular case administered by a judicial tribunal, authorized to adjudicate upon it," and the Court say that “a judge of elections, or board of election officers, constituted under State laws, is not such a tribunal." The Court, however, conclude that the act of Congress was intended to apply, and does apply, only to those cases of desertion, in which there has been a conviction by court martial, and that thus construed, it is constitutional. To the same effect is State vs. Symonds, 57 Maine, 148.

§ 19. The punishment of disfranchisement is not a cruel and unusual one, and it is competent for the legislature, unless restrained by the State constitution, to inflict it as a penalty for crime. But when the constitution provides, that a law may be passed, excluding from the right of suffrage, persons who have been or may be convicted of infamous crimes, it would seem that it is not in the power of the legislature to inflict this penalty for any other than infamous offenses. (Barker vs. People, 20 Johnson, 457.)

§ 20. In the case last named, it was held that the right of voting, and being voted for, are not convertible terms. It is there said that "a great class of voters are not required to be free holders, and yet it is necessary (in New York) to the qualification of a Senator or a Governor, that he should be a free holder, and with respect to the Governor, he must be a native citizen of the United States, thirty years of age, and a resident within the State for five years. The right of suffrage is therefore distinct from the

right of being elegible to an office." And it was accordingly held that an act of the Legislature of New York to suppress dueling, passed in 1816, and which declared that any person convicted of sending or accepting a challenge to fight a duel "shall be incapable of holding or being elected to any post of profit, trust or emolument, civil or military, under this State," is constitutional. And a conviction and judgment of disqualification under it, are legal and valid. But in the same connection the Court discuss the question whether the legislature are not restrained from excluding from the right of suffrage, persons convicted of a crime which is not infamous, within the legal signification of that term, and the conclusion is that it is only upon the conviction for an infamous crime that a voter can be disqualified. Infamous crimes are treason, felony, and every species of the crimen falsi, such as perjury, conspiracy and barratry.

Sending or accepting a challenge to fight a duel is not, therefore, an infamous crime, but inasmuch as the right of suffrage does not necessarily imply the right of being voted for, it was held that the latter right might be forfeited by conviction for a crime not infamous, if so provided by statute.

§ 21. In a contested election case, where it is alleged that certain aliens voted illegally, without having been naturalized according to law, parol evidence is admissible to show that naturalization papers were fraudulently issued, or fraudulently procured. Thus in Wisconsin it has been held that where oaths (or affirmations,) in the form required for aliens, declaring their intention to become citizens, were signed

in blank, by the Clerk of a Circuit Court, and so delivered by him to a Justice of the Peace, to be by him filled out, with the date and names of the persons subscribing them, &c., and the oath was in fact administered by the Justice, and not (as it purported to have been) by the Clerk, these facts might be shown by parol, and the votes of such aliens must be rejected. [State vs. Stumpf, 23 Wis. 630.) It is very true, that the judgment of a Court of competent jurisdiction, in the matter of the naturalization of a citizen, is as conclusive as its judgment in any other matter within its jurisdiction. But it is always competent to show that the parties were not within the jurisdiction of the Court, and if the act of pretended naturalization was in fact the act of the Clerk alone, and not in any proper sense the act of the Court, it would be a monstrous doctrine to hold that the certificate bearing the Clerk's signature and seal is conclusive. Such a rule would permit the party who committed the fraud to protect himself by his own fraudulent certificate.

§ 22. In some of the States it is provided by constitutional provision, that to entitle a man to vote, he must, as a pre-requisite, have paid, within two years next preceding the time of the election at which he claims a right to vote, a State or County tax. In Massachusetts it has been held under a provision of this character, that the payment of a State tax within the proper period of time, by one who is in other respects a qualified voter, entitles him to vote, although such tax was illegally assessed upon him. (Humphrey vs. Kingman 4, Metcalfe 162.)

§ 23. Though a tax which is assessed upon one