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ducted, either through an indifference of the states, or otherwise, that the general government might find itself unsupported by the very people on whose will the foundations of the government rested. Hence, we say, the scheme pointed out by this section four; and hence, we say, the explanations which were given by the great and good men who expounded it.

It seems to me, that we ought to pause but a moment upon the suggestion, that in the enforcement of a law such as we have now before us for consideration, intended to secure an election of members of the house of representatives, by the giving of all legal votes, and by the giving of none that are fraudulent, the government of the United States has no interest. "The government of the United States"-what is that? It may be conceded to be an artificial thing which men call "government," and which is sometimes looked upon as the source as well as the exhibition of power, and not capable of interest more than it is of thought or feeling. But the government of the United States, in the true sense, is the people of the United States, one and all, throughout the length and breadth of the land. And the people of the United States, here and elsewhere, have not only an interest, but an interest that is vital, in the preservation of their institutions, and in the preservation of all that is pure, just and honest in the popular vote, on which, for their safety and security, their institutions and their government rest. Now it is conceded, if I have rightly apprehended the arguments which have been addressed to us, to be within the constitutional grant of power to congress, to proceed, under this power, to regulate the time, place and manner of holding elections, and to make such regulations as to each, that all the electors, in every state, shall have full and fair opportunity to declare their will. And the illustration chiefly used in the discussion to which I have referred, was one drawn from the supposition that, possibly, the intervention of congress to secure that

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end might become necessary. It is equally important, that no one who is not an elector shall be permitted to defeat the will of those who are, by interposing his vote. It is also equally important, that no one shall be permitted to deposit more votes than he is entitled to; and both these possible evils rest precisely on the principle on which it was declared that this clause might be useful, and the exercise of the power might become necessary, in order that all legal voters should have full and fair opportunity to deposit their votes. The court are not able to see the difference in principle between a regulation to enable all to vote who are entitled to vote, and a regulation to prevent men from voting who are not entitled, or to prevent men from voting more times, or in more places than one. If not, then the power to do the one, and the power to prohibit the one, involves the power to prohibit the other; the power to make a regulation that shall secure to every man entitled to a vote, a safe and convenient exercise of his privilege, involves the power to see to it that no one who is not entitled to vote shall be permitted to exercise that right.

All this leaves, as I have already stated, the subject of the qualification of electors, untouched; leaves the laws of the states, the laws of the state of New York, to operate in their full force. And although it be true, that the laws of the state of New York cannot be relied on as the source of authority, or as giving any vigor to the enactment, yet, if it be necessary to refer the power of congress to pass this enactment, to a grant to be found in the constitution, wholly independent of state authority, then, the court must say, it has it in the section before us. And if it be true, that the existence of that power in congress is exclusive, so that, when exercised, it takes the place of existing state laws, and the imposition of state penalties, be it so; this involves no new principle. The court and the people of the country have long been familiar with the doctrine which is now conceded, and indeed insisted on here, that the legislation

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of congress on the subjects entrusted to it by the constitution, is exclusive.

On that subject, two observations are pertinent; the first is, that failure to exercise the power hitherto, is shown by the history of this government, to furnish no argument against its existence. The debates to which I have referred, the discussions to which I have alluded, breathe of the confidence the framers of the constitution had, not only in the patriotism, but in the intelligence and wisdom and fidelity of the people; in the congress of the United States which was convened, and has continued to be convened from that time onward, the same confidence that the people of the United States would, on this subject, make all due and needful regulations, has been exhibited. If it be true that the time has come, which the contemporaneous exposition of the constitution contemplated as possible, and designed to anticipate and guard against, in which it was expedient for congress to intervene and exercise the power, then that time has come, the anticipation of which furnished the occasion and the ground for introducing this clause into the constitution. Whether that time has come in which just apprehension warranted legislation; whether occasion, therefore, exists which made it best and wisest that congress should exercise the power, is a question with which a judicial tribunal has nothing to do; of that, congress is the sole and proper judge.

The other observation, having reference to this lapse of time, which I propose to make, is this, that there are numerous powers conferred by the constitution upon congress, which, for a time, remained dormant in their hands; there are powers which even now remain dormant; and the history of adjudication on this subject, shows it to have been well established by decisions of the supreme court of the United States, that the circumstance that states have legislated, and legislated through periods of years, upon a subject, without question and interference

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by congress, in no degree impairs the force of the constitutional grant to the congress of the United States, and their neglect to exercise the power in no sort defeats the power itself. On the contrary, until the congress of the United States acts in the exercise of the power, the states, in matters not directly inhibited, legislate and their legislation has full force and validity; when the act of congress comes, then that act is exclusive. And again, therefore, I say, if it be true, if the argument be sound, that the power of the state of New York to punish, cannot coexist with the power of congress to impose punishment, under the law which we have before us, then, the exclusive legislation of congress must prevail; and it is reasoning reversely, to argue that "the two cannot coexist-the legislation of the state does exist, and therefore, the act of congress cannot stand;" it is reversing the order of argument; the true statement is this-if the two cannot coexist, the act of congress is controlling, and the state law gives way. Perhaps, I have not done justice to the argument, as it was presented; but these observations seem to me pertinent to one of the views which were presented to us in the discussion.

III. I have anticipated in what I have said, the force and effect of the 17th subdivision of the 8th section of the same article, the power to make all laws which shall be necessary or proper for carrying into execution the foregoing power. If, according to the view which we take of the section already considered, congress has power to regulate the time and manner of holding elections, so as to secure as well a full and fair opportunity to vote, at all elections for members of congress, as also to see to it that no one fraudulently exercises the privilege of voting, then it follows, under the 17th subdivision, that congress has the power to pass all laws which shall be necessary to give effect to those regulations; and we know of none so efficient, as to add the sanction of a penalty.

IV. There is another section upon which I desire to make

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a single observation: sect. 5. "Each house shall be a judge of the elections, returns and qualifications of its own members." We do not think it necessary to rest our views of the constitutionality of the law upon that section, and yet, the argument, to our minds, is plausible to a high degree, if, indeed, we ought not to regard it as satisfactory, alone considered, viz: that when the constitution confers upon each house the power to judge of the elec tions, returns and qualifications of its own members, and then authorizes them to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested in any department of the government, it authorizes congress to make such laws touching the conduct of elections and returns, as will operate, first, to furnish each house of congress appropriate evidence of the validity of the commission or appointment of any man who comes there claiming the right to a seat, and alike to prohibit the intervention of any obstacle which might embarrass or prevent the exercise of the right of each house to judge of the election of any man who claims a right to a seat.

It is familiar to us all, that when a contest arises (I refer to this as the practical exposition of the subject), congress feels itself at liberty to probe the matter of the election of a representative to its very foundation; to look through and beyond all forms of authentication and certificate, and inquire and determine the actual fact, whether or not, he who claims a seat is entitled thereto; and our statute book contains numerous provisions having for their object the facilitating of the inquiry. And can it be, that when congress is clothed with full powers to pass all laws to carry into effect this power conferred upon a department of the government, they may not make it an offence against the laws of the United States, to effect a fraudulent registration, which is to stand as prima facie evidence that the vote which is cast is a legal and proper one? I will not enlarge upon this branch of the subject; but there are