[It was under this section 5515, that the Governor of Arkansas was indicted for issuing a fraudulent certificate of election. Without entering into the merits at all, the United States District Court (composed of DILLON and Caldwell, JJ.) sustained a demurrer, on the ground that the Governor of a State was not an officer of election: U. S. v. Clayton (1871), 2 Dillon 219; s. c. 10 AMERICAN LAW REGISTER 737. This citation in the margin of the Revised Statutes is incorrectly given "19 Amer. L. Rep. 737," being both a misprint and a disregard of the numbering of the New Series. The decision itself proceeded upon two grounds; the popular use of the words "officers of election", and the danger of disturbing the political harmony of the Union upon a mere construction of a statute. The authorities followed are collated (infra, page 372). [The definition of an "officer of an election" was also entered upon in U. S. v. Fisher (1881), U. S. Circ. Ct., S. Dist. Ohio, 8 Fed. Repr. 414, where a supervisor, appointed under the laws of the United States, was indicted for stuffing the ballot box, and demurred on the ground that he was not an "officer of election." The demurrer was overruled, after an examination into the duty of a supervisor.

VII.

[In addition to the general crime of intimidating a citizen (ante, page 347) there are two classes of statutes relating especially to the ballot. One of these relates to violation of rights secured in every State and Territory to every voter, by the Fifteenth Amendment. Want of space forbids examination into this class of intimidations, and requires that attention should be given solely to the other class of statutes relating to voters for electors for President or Vice-President, or for Representatives in Congress.

[In 1883 Munford and others demurred to an information in the United States Circuit Court for the Eastern District of Virginia, charging them with conspiracy to prevent, as well as actually delaying the assessment of certain voters as required to be done to qualify them to vote. The authority for such information was in the Revised Statutes

SEC. 5506. Every person who, by any unlawful means, hinders, delays,

prevents or obstructs, or combines and confederates with others to hinder, delay, prevent, or obstruct any citizen from doing any act required to be done to qualify him to vote, or from voting at any election in any State, territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be fined not less than five hundred dollars, or be imprisoned not less than one month nor more than one year, or be punished by both such fine and imprisonment.

[The margin of the Revised Statutes indicates that this Section was derived from Section four of the Act of 1870; it also refers to the cases of U. S. v. Reese (1875), 92 U. S. 214, and U. S. v. Cruikshank (1875), Id. 542, where Section four was pronounced unconstitutional. Of course, the counsel for Munford raised the constitutional question; the Court, composed of Judges BOND and HUGHES, denied the application of these decisions, pointing out that they were rendered in civil rights cases and not at or connected with congressional elections, and under Section four of the Act of 1870, which was connected with the preceding sections by the words "as aforesaid." This latter point was especially dwelt upon by both the judges :—

The information in this case is founded upon Section 5506 of the Revised Statutes of the United States. I will remark that that Section is not the same law as Section four of the Enforcement Act of May 31, 1870. It is nearly the same in terms, but it contains no words connecting it with other sections of any act, as Section four did. It stands upon its own terms and language. It was not enacted in the same bill as Section four of the Act of 1870, or at the same time, or by the same Congress. It was enacted in 1874, and took effect as a law on the first of December, 1874, two months after the case of U. S. v. Reese was argued before the Supreme Court of the United States, and more than two years after the indictment was found, which was passed upon in that case. The Supreme Court did not in the case of Reese, and has not in any subsequent case, passed upon Section 5506 of the Revised Statutes; and, whatever it may have ruled in any of its decisions upon any other statute, such as Section four of the Enforcement Act of 1870, non constat that it has thereby ruled upon Section 5506, upon which the information before us is founded.

We are dealing here with an offense charged to have been committed at a Federal election, in violation of this Section 5506; and the defense ask us to base our ruling, in this case of a Federal election, upon the ruling of the Supreme Court in a case arising in a town election, under the Act of 1870, in which that Court not only carefully confined itself to the case before it, but protested by iteration, that it was not considering any law in its relation to Federal elections: HUGHES, J., U. S. v. Munford (1883), U. S. Circ. Ct., E. Dist. Va., 16 Fed. Repr. 223. 229.

[Munford had still further trouble, as he was sued for refusing to assess one Brown, who wished to qualify himself to vote for Congressmen. The declaration contained the necessary averments, to bring the case within the Revised Statutes

SEC. 2005. When, under the authority of the constitution or laws of any State, or the laws of any Territory, any act is required to be done as a prerequisite or qualification for voting, and by such constitution or laws, persons or officers are charged with the duty of furnishing to citizens an opportunity to perform such prerequisite, or to become qualified to vote, every such person and officer shall give to all citizens of the United States, the same and equal opportunity to perform such prerequisite, and to become qualified to vote.

SEC. 2006. Every person or officer, charged with the duty specified in the preceding Section, who refuses or knowingly omits to give full effect to that section, shall forfeit the sum of five hundred dollars to the party aggrieved by such refusal or omission, to be recovered by an action on the case, with costs, and such allowance for counsel fees as the court may deem just.

[A demurrer to this declaration was overruled upon the principles already decided in the criminal case (U. S. v. Munford), Judge HUGHES adding—

We hold that Section 2005 was passed by Congress subsequently to the Act of May, 1870, as part of the laws of the Revised Statutes relating to the elective franchise; that it was passed in virtue of the general powers of Congress over Federal elections; that it is not, necessarily, to be construed in connection with the preamble and context of the Act of May, 1870; that it was enacted independently of such context, as it now stands in the Revised Statutes, on the twentieth of June, 1874; that Congress must be held to have applied it to Federal elections whether express language was used to that effect or not; that it does not in its present form and status apply to State elections, because, in respect to them, the section, in order to be valid under the Fifteenth Amendment, which gives only limited powers of legislation over State elections, must contain apt words bringing it within the province of the amendment, which words are wanting; that the fact that the section is not warranted by the Fifteenth Amendment does not render it null if it is authorized by Article one of the Constitution; and that if the discrimination complained of in this suit resulted, as alleged, in depriving the plaintiff of the privilege of voting equally with all others entitled to vote in a Federal election, the declaration is good.

VIII.

[The scope of this article forbids an examination into the laws regulating the holding of an election and it will merely be necessary to refer to the Sections of the Revised Statutes

(Title XXVI), relating to the appointment of supervisors, and special deputy marshals, and for holding sessions of the United States Circuit Courts. The subject will be separately considered hereafter.

CHAP. XXII. An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States; and for other Purposes. (Approved April 20, 1871, 17 Stat. at Large 13.)

SEC. 2, in part, as incorporated in the Revised Statutes: to wit

SEC. 5520. If two or more persons, in any State or Territory, conspire to prevent, by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support, or advocacy, in a legal manner, toward or in favor of any lawfully qualified person as an electer for President or Vice-President, or as a member of the Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; each of such persons shall be punished by a fine of not less than five hundred, nor more than five thousand dollars, or by imprisonment, with or without hard labor, not less than six months nor more than six years, or by both such fine and imprisonment.

[The constitutionality of this Section was affirmed in U. S. v. Goldman (1878), (U. S. Circ. Ct., Dist. La.) 3 Woods 187, the Circuit Judge Woods, distinguishing the ruling in Minor v. Happersett (1874), 21 Wall. (88 U. S.) 178, that the Constitution of the United States conferred the right of suffrage upon no one, in a manner different from that adopted in the Yarbrough case by the Supreme Court: (ante, page 347).

But this language refers solely to voters at an election for State officers, and so far as such elections are concerned, the United States has no voters of its own.

* *

*

*

Now, the question is, has an elector who is qualified by State law to vote for the most numerous branch of the State Legislature, a right conferred upon him by this clause of the Constitution to vote for members of Congress? It seems to be clear that the language of the Section under consideration could not have been intended merely to give a basis of representation; that was provided for by other clauses of the Constitution. If this be so, it must follow that it was intended as a declaration as to who of the people of the States, should have the right to vote for representatives in Congress. As, therefore, the elector qualified by State laws, derives his right to vote for members of Congress from the Constitution of the United States, Congress has the power to protect him in that right.

An election is not simply the depositing of a ballot in a box. If the clector is forced to vote a certain ballot against his will, it is not an election so far as he is concerned, and equally so if he is prevented by violence from voting at all. An election is the expression of the free and untrammeled choice of the electors. There must be a choice, and the ex

pression of it, to constitute an election. Under our American Constitution, an election implies a free interchange and comparison of views on the part of the people who are voters, and finally an independent expression of choice. Any interference with the right of the elector, to make up his mind how he shall vote, is as much an interference with his right to vote as if he were prevented from depositing his ballot in the ballot box after he had made up his mind: WOODS, J., Id. 196, 197.

[These sentiments are much the same as those of Judge NIXON in the Camden intimidation case (ante page 352), and are solidly based upon the principles of interpreting election laws mentioned at the close of this article.

[The subject of electors for President and Vice-President has already been treated: (ante, page 343).

IX.

The United States government has not provided separate elections for Congressmen, nor has it interfered with the general laws for the conduct of those elections passed by the State, but has enacted suitable laws for the punishment of persons who violate laws at an election where votes are cast for members of Congress. In doing this, the laws of the State have been adopted, and provisions have been made for the punishment of crimes against the ballot box, in the Federal Courts. The power of Congress, under the Constitution of the United States, to make such provisions as are necessary to secure the fair and honest conduct of an election at which a member of Congress is elected, as well as the preservation, proper return, and counting of the votes cast thereat, and whatever is necessary to an honest and fair certification of such election, cannot now be questioned: In re Coy (1888), 127 U. S. 731. The State laws which Congress sees no occasion to alter, but which it allows to stand, are, in effect, adopted by Congress. The duties devolved on the officers of elections, are duties which they owe to the United States as well as to the State: Ex parte Siebold (1879), 100 U. S. 371, 388.

An objection sometimes made to this doctrine, that the Federal Courts can enforce the State laws as laws of the United States, is, that if Congress can impose penalties for violation of State laws, the officer will be made liable to double punishment for delinquency, both at the suit at the State, and at the suit of the United States.