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(Congressional legislation.)

or other law, we feel, not only at liberty, but constrained to confine ourselves to a very brief statement of the leading grounds upon which the conclusion we have reached must rest.

First, then, as to the constitutionality of the act in question. It is important, perhaps, certainly we deem it wise, in approaching that subject, to state just what the question is, which we are called on to consider, and to what a narrow point of inquiry the questions involved in the present demurrer, bring us. The section of the act of congress upon which this indictment is found, is single; it is a single section of a single statute. Its validity involves the consideration of no other sections of the same or other statutes; its discussion does not bring into view numerous questions which were alluded to in the progress of the argument, which might or might not be fit subjects for discussion, if other statutes, or other sections of the same statute, were before us for review.

Without reading the section, under which the indictment is found, at length, or attempting to speak of it in technical terms, it must suffice to say, that it is an act which makes a fraudulent registration, or fraudulent attempt to register, by a person not having a legal right to do so, for the purpose of an election of a member of congress, a crime against the United States of America; and the validity and constitutionality which we are to consider, rest alone upon the single question, has congress the power, under the constitution, to declare a fraudulent registration, or fraudulent attempt to register, for the purpose of voting for a representative or delegate in congress, a crime against the United States? We, therefore, enter into no consideration of various topics which were alluded to, referring to other details of other laws or of the act of which this section is a part.

There are four provisions of the constitution of the United States, reference to which is pertinent to the inquiry before us, namely: Art. I., sect. 2. The house of

(Congressional legislation.)

representatives shall be composed of members chosen every second year by the people of the several states; and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature: Sect. 4, § 1. The times, places and manner of holding elections for senators and representatives, shall be prescribed, in each state, by the legislature thereof; but congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators: Sect. 5, § 1. Each house shall be the judge of the elections, returns and qualifications of its own members: Sect. 8, § 17. Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.

I. Does the act in question infringe the provision of the constitution that I have read, which provides that electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislature? It is argued, with great ingenuity and ability, that the act in question infringes that clause of the constitution, because it seeks to establish the test of qualification; it seeks to affirm the evidence of qualification, and by so doing, it, ex vi termini, imposes qualifications itself. We apprehend that this argument rests upon no solid basis; the act in question neither professes, nor, by any implication, can it, we think, be construed, to affect the qualification of any elector anywhere. It imposes no duty to register; it prohibits no registration that is required in the state in which the elector seeks to exercise his franchise; it touches no qualification of the elector in any other respect; it leaves the state to prescribe the qualifications of electors for the most numerous branch of the state legislature, in the largest and fullest extent, untouched and unaffected; it says and only says, that when the qualification of regis

(Congressional legislation.)

tration is imposed by the state law (leaving the expediency and wisdom of such a law entirely to the judgment of the state), it shall be an offence against the laws of the United States, to contribute, by fraud or violation of the state registry laws, to the sending of a representative to the congress of the United States, who is not clothed with the authority which a true expression of the popular will would give; and that is all.

But it is said that congress, having nothing to do with the question of qualification, cannot treat of the subject of qualification at all; because, to require that the elector shall have the qualification which the state law imposes, and make his voting or registration an offence, if he has not that qualification, is, on the part of congress, to impose a condition itself on the right to vote. The court do not feel called upon to say, however little doubt they may feel upon the subject, whether or not the congress of the United States might, if they saw fit, make it a condition, throughout these United States, that all who come to elect members of the house of representatives shall first register their names. We do not conceive that that question is involved; but that the prescription of such a condition is no infringement of the elector's right to vote, we have no doubt, and we refer with confidence and with satisfaction to the constitution of the state of New York as the exposition of the views of her people and her legislature, at least, upon that precise question. It is provided in her constitution of 1846, that any male citizen of the age of twenty-one years, who shall have been a citizen for ten days, and an inhabitant of the state for one year next preceding the election, and for the last four months a resident of the county where he may offer to vote, shall be entitled to vote in the election district of which he shall be, at the time, a resident, and not elsewhere, for all officers that now are or hereafter may be elective by the people; a declaration of qualifications, and the sole qualifications which, under the consti

(Congressional legislation.)

tution of the state of New York, it is competent to prescribe. And this same constitution, not deeming this unqualified declaration of the qualification of voters infringed, in any degree, has in section four of the same article, provided that laws shall be made for the ascertaining, by proper proofs, the citizens who shall be entitled to the right of suffrage hereby established. Our reflections lead us, therefore, to the conclusion, and without hesitation, that the prescription of a mode of ascertaining and certifying the qualification of him who shall present himself to exercise the elector's privilege, is no infringement of the clause that declares what shall constitute the requisite qualification, and is no attempt to prescribe to the states (to this or any other state) any condition for the exercise of the right of suffrage, and no attempt to prescribe the qualifications of an elector. If we are right in this, then the second section of the first article of the constitution is no impediment to the legislation of congress upon this subject.

II. The next clause of the constitution to which we refer (sect. 4, § 1), declares that 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. Upon this affirmative provision of the constitution, and in support of the legislation which is now assailed, it is insisted, that this clause of the constitution warrants the passage of the act in question, on the one hand, while, on the other, it is denied, first, that this section includes the authority claimed; and secondly, that the authority attempted to be exercised is within it.

The framers of the constitution of the United States placed its government, all its strength and vigor, and all its permanent capacity for usefulness to the people, for whom it was made, in the votes of the people themselves. The debates in the convention in which the constitution

(Congressional legislation.)

was framed, the discussions which were had, by way of exposition, when the constitution was presented to the states for their acceptance (both of which were cited to us in the argument), show, in the fullest manner, that those framers of the constitution did not, for one moment, lose sight of the indispensable condition, on which alone a government of the people could be safe to the people themselves, or could secure the beneficent ends for which it was instituted, that the popular vote should be the true expression of the opinions and choice of the electors. Hence, we say, this section four of the first article of the constitution; and hence (as was ably and clearly exhibited in the argument of the learned counsel for this defendant), the framers of the constitution, either through an apprehension that in some possible change of events, the states might become indifferent to the general good, and so neglect their duty, or warned, perhaps, by experience had under the previous articles of confederation on that subject, or, with wisdom forecasting the possibility that, at some distant period, circumstances might arise in some state, in which obstacles would be interposed to the full and fair expression of the popular voice, and so, conscious that the very preservation of the government itself, for all its useful ends, demanded that its perpetuation through a popular vote should be secured, by this fourth section, conferred power upon congress for that self-preservation. Time might be somewhere so arranged, and for some end other than the well-being of the whole nation, that the popular voice might be denied a full expression; place might be so fixed, as in that mode to defeat the general and the indispensable purpose; the manner of holding an election might be' such, as to operate to prevent an open, fair expression of the popular voice; or, to use an illustration freely used in the discussions had, when those men who went into the various states and elsewhere, wrote in explanation of the provisions of the constitution, that the people might understand it, elections might be so con

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