McKay v. Campbell. brought, provides for enforcing the amendment to the Constitution which declares: "Art. 15. Sec. 1. The right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any State, on account of race, color, or previous condition of servitude." "Sec. 2. Congress shall have power to enforce this article by appropriate legislation." The act also regulates the elections of representatives in pursuance of section 4 of article 1 of the Constitution, which declares: "The times, places, and manner of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the place of choosing senators." Sections 2, 3, and 4 of the act, which relate to the enforcement of the amendment to the constitution, give penalties, to be recovered by civil action, against persons who violate them, but violations of that portion of the act regulating the election of representatives in Congress, are only punishable by indictment or information. In considering the sufficiency of the complaint, therefore, in this action, 'no special significance can be given to the fact that the plaintiff offered to vote for a candidate for representative in Congress. By the XIVth amendment to the Constitution, it is declared that:-" Art. XIV. Sec. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside." . . . This clause of this amendment declares who are citizens of the United States, and of the several States respectively. The XVth amendment, above quoted, declares in effect that citizens of the United States and of the several States shall vote in their respective States at all elections by McKay v. Campbell. the people, without distinction on account of race, color, or previous condition of servitude. But the amendment does not take away the power of the several States to deny the right of citizens of the United States to vote on any other account than those mentioned therein. For instance, notwithstanding the amendment, any State may deny the right of suffrage to citizens of the United States on account of age, sex, place of birth, vocation, want of property or intelligence, neglect of civic duties, crime, &c. The power of Congress in the premises is limited to the scope and object of the amendment. It can only legislate to enforce the amendment, that is, to secure the right to citizens of the United States to vote in the several States where they reside, without distinction of race, color, or previous condition of servitude. And this appears to be the intention of the act, so far as it relates to the enforcement of the amendment. Section 1 declares, in effect, that all citizens of the United States, being otherwise qualified by law, shall be allowed to vote at all elections by the people in any State, district, &c., without distinction of race, color, or previous condition of servitude. True, the language of sections 4 and 5, particularly the former, if taken literally, would apply to acts and proceedings intended to prevent citizens of the United States from voting, whether the same were done or carried on on account of the race, color, or previous condition of servitude of the citizens in question or not. But they ought to be construed so as to harmonize with the unambiguous sections which precede them, and must, in any view of the matter, be construed so as to have effect only within the limits of the power conferred by the amendment on Congress over the subject. Upon this construction of the act, to maintain this action I think it would be necessary to prove on the trial: McKay v. Campbell. I. That the plaintiff was a citizen of the United States, and otherwise qualified to vote at the time and place mentioned in the complaint. II. That the defendant refused or knowingly omitted to furnish the plaintiff an opportunity to become qualified to vote, as by refusing or knowingly omitting to swear the plaintiff to his qualifications as an elector, when the law of the State made it his duty so to do, and that such refusal or omission was on account of the race, color, or previous condition of servitude of the plaintiff. If it be necessary to prove these facts to maintain this action, they ought to be alleged in the complaint. Now the complaint is silent as to the reason of the defendant's refusal or omission to swear the plaintiff as to his qualifications as an elector. It may have been for some other reason than on account of his race, color, or previous condition of servitude, and then the plaintiff's remedy, if any, would be found under the State law and in the State tribunals. I know it may be said with much probability, that disingenuous judges of election who are violently adverse to and prejudiced against the amendment and the act, may refuse or omit to allow a citizen to qualify himself to vote, ostensibly for some reason not within the purview of the act, but really and in fact on account of his race, color, or previous condition of servitude. But this is a question of fact, and if the evidence is sufficient, the jury will be bound to disregard the pretenses of the defendant, and find according to what appears to have been the fact. Besides, to prevent a failure of justice on this account, it may be necessary and proper to hold, in this class of cases as in many others, that slight proof on the part of the plaintiff as to the reason of the defendant's refusal or omission, is sufficient to throw the burden of proof in this respect upon the latter. The demurrer must be sustained. United States v. Athens Armory. UNITED STATES v. THE ATHENS ARMORY. District Court; Northern District of Georgia, March T., 1868. STATUTORY CONSTRUCTION.-CONFISCATION. Even in determining the construction of a statute authorizing a confiscation of property for an offense by its owner, words are not to be confined to a strict technical sense, when so doing will clearly defeat the evident intent of the statute. Thus, the employment of the phrase "prize and capture," in the act of August 6, 1301, 12 Stat. at L. 319,-declaring private property used in promoting insurrection to be "lawful subject of prize and capture," does not limit the operation of the act to property taken at sea. Property found on shore, or even land itself, may be condemned under the act. In prosecuting an information to enforce a seizure, under the act of August 6, 1861, issues of fact should be submitted for trial by a jury, according to the course of the common law. The act does not contemplate the determination of the facts by the judge, as in causes of admiralty jurisdiction. An unqualified pardon, granted to the owner prior to the seizure of property, or the institution of any proceedings to condemn it, under the acts authorizing confiscation of property used to promote the rebellion of 1861-'65, is a bar to a judgment of condemnation. Trial of an information. At March term, 1867, of this court, the district-attorney, in behalf of the United States, filed an information against certain property, real and personal, particularly described in the pleadings, and consisting of a tract of land near Athens, Georgia, with the buildings and improvements thereon, together with a great variety of articles, chiefly machinery, implements, and material for the fabrication of arms, some of the material United States v. Athens Armory. being unwrought, and some of it advanced more or less towards completion as weapons of war. The property, of every kind, was of the value of one hundred and fifty thousand dollars; and it came to the custody of the marshal under a warrant of seizure issued on November 22, 1866, by the district-attorney. The information treated the property as having belonged, prior to the occurrence of the alleged causes of forfeiture, to Ferdinand W. C. Cook and Francis L. Cook, copartners, using the name of Cook Brothers, and prays, on three grounds, for its condemnation under an act of Congress approved August 6, 1861, and, on an additional ground, for its condemnation under an act approved July 17, 1862. The provisions of these acts were, in part, recited; and it was averred that the proclamations of the president therein contemplated were issued and published. The grounds of forfeiture alleged under the act of Angust 6, 1861, were the following: 1. That after the passage of said act, and after the publication of the president's proclamation in pursuance thereof, and during the late rebelion, Cook Brothers, for one hundred and fifty thousand dollars, sold and conveyed the property to the so-called government of the Confederate States, knowingly, with intent that the same should be used and employed in aiding, abetting, and promoting the rebellion. 2. That Cook Brothers, having on April 1, 1862, entered into a contract with the so-called Confederate States for the mamufacture of thirty thousand rifles, did, on July 14, thereafter, to secure the sum of one hundred and fifty thousand dollars, paid in advance on said contract, make a deed of trust or mortgage to the said so-called Confederate States, covering the property now libeled; that the said Cook Brothers used and employed said property in aiding the rebellion, and especially in manufacturing said rifles, and |