open a wide door to the fraudulent importation of voters. Yet in adjoining districts of different States the same evil is encountered. If New Jersey and New York elected representatives on different days a portion of the migratory population of the border cities of these States would have the amplest fields for undetected fraud. And this is but an example of what may and does exist elsewhere. It would seem equally clear that in the years when electors of President and Vice-President are by law required to be elected the election for representatives in Congress should take place on the same day with that of the presidential electors. By this means the loss of time to all the voters involved in two elections would be reduced one-half, and generally the same officers conducting both elections could perform the duties of both on the same day and with only the expenses of one. In a purely economical view this is worthy of attention, especially when this plan is attended with other advantages and no evils. * * As Congress has power to "alter" State regulations prescribing "the times, places, and manner of holding elections for * representatives,"14 and as the law of Congress will become "the supreme 15 law of the land" on this subject, it will or may ex proprio vigore operate upon all State laws, regulations, officers, and citizens, and no alteration by State authority of State laws or regulations will be necessary. The elections for representatives in Congress should be held so as to provide against unavoidable vacancies.16 A bill is reported in accordance with these views. A BILL prescribing the time of electing representatives in Congress. Be it enacted, &c., That the members of the House of Representatives and delegates from the Territories for the next and every succeeding Congress shall be chosen by the people of the several States and Territories on the same day in each State and Territory, as follows: on the second Tuesday of October in each year when such members and delegates are required to be elected, except that in the years when electors of President and Vice-President are by law to be appointed the election for members of the House of Representatives and delegates shall be held on the Tuesday next after the first Monday in the month of November: Provided, That in case any vacancy or vacancies may happen in the representation from any State or Territory, or when an election shall have been held without resulting in the choice of a member or delegate, in all such cases the vacancy shall be filled by an election held at such time as is or may be provided by law in the State or Territory where such vacancy may happen. And all laws or regulations prescribed in any State are hereby altered to conform to the provisions of this act. And all officers or persons authorized or required to perform any duty in relation to such elections shall conform to the requirements of this act. And members of the House of Representatives from each State and delegates from the Territories shall be elected in the year 1870, and biennially thereafter, so that all the members of the House of Representatives and delegates from the Territories to which such States and Territories are or may be respectively entitled shall be elected at the last general election preceding the time when the terms of such representatives and delegates will commence. 14 Constitution, article 1, section 4. 15 Constitution, article 5. 16 Story says, in reference to the times of elections under State regulations, thatThe times of elections [in different States] are quite as various [as the mode thereof,] sometimes before * * This * and sometimes after the regular period at which the office becomes vacant. * has been productive of some inconveniences to the public service, * * for it has sometimes occurred that at an extra session a whole State has been deprived of its vote, and at the regular sessions some districts have failed of being represented upon questions vital to their interests. -1 Com. on Constitution. See 826. CHAPTER IV. THE PREVENTION OF FRAUDS IN THE ELECTION OF REPRESENTATIVES No argument is necessary to prove that the right of suffrage should "be guarded, protected, and secured against force and fraud." 17 The history of election frauds proves that in some portions of the Union at least State laws are inadequate in their structure and mode of administration to accomplish these results. If there could have been a free and honest exercise of the elective franchise in the southern States of the Union, in which the question of secession was submitted to the decision of the voters, it could not have prevailed in more than one or two States. It is a fact, attested by universal experience, too, that men stand in greater awe and dread of penalties enforced in the national courts than in State tribunals. In exciting political contests, where frauds are greatest, the possibility of punishment is least in the local courts. The men and the influences which can perpetrate the frauds can screen the guilty from punishment. The officers of justice are paralyzed in their efforts, and juries selected from the immediate locality of the frauds are too often participants in them or eager to screen the guilty.18 In the national courts, jurors are selected from the entire district, and therefore furnish the amplest possible guarantee against sympathy with fraud or prejudice which might lead to inconsiderate convictions. The fact disclosed by the investigations of the committee that more than 25,000 fraudulent votes were cast in New York city in November, and that the guilty parties who cast them are at large without fear of punishment, proves that something must be done to prevent these frauds, or elections will soon degenerate into a mockery and a sham. A government. having the power to prevent them would be no less criminal than their perpetrators, if it could look on with indifference, or without alarm, and not exert all its energies to avoid their recurrence. There can be no doubt of the constitutional power of Congress to prescribe penalties to avert the national calamity and disgrace involved in these monstrous frauds. By the Constitution Congress has ample power to "make" "regulations" prescribing "the times, places, and manner of holding elections for senators and representatives" in Congress.19 Congress is thus invested with all the powers now exercised by the States in relation to these elections, and can prescribe election districts, provide for election officers, the mode of announcing, authenticating, and declaring the result, and prescribe offences for officers, voters, and others-in all respects affecting or connected with such elections. The 17 Mr. Webster, in regard to the right of suffrage, lays down "two great principles of the American system: 1. The right of suffrage shall be guarded, protected, and secured against force and against fraud. 2. Its exercise shall be prescribed by previous law," &c.-6 Webster's Works, 224. 18 Judge White's evidence, 4779. 19 Art. 1, sec. 4. Under the more limited power to establish post offices and post roads, Congress has made a penal code for offences relative to the mail service. Mr. Madison said, in the convention, referring to article 1, section 4: These are words of great latitude. Whether the voters should vote by ballot, or viva voce; should assemble at this place or that place; should be divided into districts, or all meet at one place; should all vote for all the representatives, or all in a district vote for a number allotted to the district-these and many other points * ** might materially affect the appointments.-3 Madison Papers, 1280. * * Х Constitution "authorizes Congress to do supremely whatever the State legislatures may do provisionally on any part of the subject." 20 But unless the necessity should be more general than now appears, it is not deemed advisable for Congress to exert its whole power in this respect. If great frauds continue in any one or more cities, it may become necessary for Congress to intervene, by providing for election officers and a mode of conducting elections there. But as this would multiply officers, the committee deem it advisable to adopt the election officers under State authority, declare them national officers for all purposes of national elections, and provide adequate penalties, to be enforced in the national courts, to guard, protect, and secure the elective franchise against force and fraud. The Constitution fully sanctions this mode. In the absence of all regulations on this subject by Congress, the Constitution 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 Congress is authorized to "alter such regulations." In doing this Congress may adopt officers provided under State authority and "make" all other regulations which States could do, and enforce them in the national courts, or by such agencies as may be prescribed. "Whatever 'regulations' the State legislature may make regarding the whole subject, Congress may 'alter."" 21 The principle has even been carried further. In those cases where an exclusive power is reserved to Congress State officers may be authorized by Congress to execute the powers, and such officers and even citizens violating the national law on that subject may be made amenable to national penalties enforced in the national courts.22 If, then, Congress may employ State tribunals to execute an exclusively national power, and subject to penalties all who in such tribunals violate national laws a fortiori, citizens and officers directly amenable to national 20 Farrar's Manual of Const., p. 238, sec. 242. 21 Farrar's Manual, 246, sec. 252. 22 The power of naturalization is exclusively confided to Congress and the national govern ment. The State courts, authorized by act of Congress to naturalize foreigners, have power to do so.-Morgan vs. Dudley, 18 B. Monroe, 721. In People vs. Sweetman, 3 Parker Crim. Cases, 373, Pratt, J., referring to naturalization in State courts, said: The preponderance of authority seems to be against the power of Congress to confer such jurisdiction. 1 Wheat., 336; 5 Id., 49; Serg. Const. L., ch. 27; 17 Johns., 15; Virg. Cases, 321; 7 Conn., 239; 2 Wheat., 269; Martin vs. Hunter, 1 Wheat., 330. There is another class of cases in which duties judicial * have been conferred on * State courts, which it is held they are not bound to discharge, but may or may not discharge them, at their option. Prigg vs. Com., 16 Peters, 531. The naturalization laws confer powers upon the State courts, * and in entertaining them they are exclusively under the laws of the United States, and should be deemed quoad hoc courts of the United States. [The act of Congress of April 14, 1802, sec. 2, declares the State courts to be "district courts" of the United States for naturalization purposes.] The crime, (perjury,) therefore, with which the prisoner was charged was crime against the laws and sovereignty of the United States, and not against the laws and sovereignty of the State. Bacon, J., said: * A State court has no jurisdiction of criminal offences against the United States. U. S. vs. Lathrop, 17 Johns R., 4. And it was held that perjury in a naturalization proceeding in a State court was "punishable in the United States courts and not in the State courts. 1 Kent's Com., 401. It is so held in 2 Bishop, Crim. Law, sec. 987 (867). State vs. Adams, 4 Blackford, 146. State vs. Pike, 15 N. H., 83. United States vs. Bailey, 9 Peters, 233. United States vs. Winchester, 2 McLean, 135. Rump vs. Com., 6 Casey, 475. The act of Congress of 25th February, 1865, made it a penal offence for any officer or person in the military service to intimidate or prevent any qualified voter at any general or special election in any State from freely exercising the right of suffrage. (13 Stat., 437.) Congress could as well punish any citizen for a like offence. authority, exercising functions, performing duties, or enjoying privileges directly under the sanction of the supreme government, may be punished for any abuse of their functions, violations of duty, or perversion of privileges. On this subject it is unnecessary to call in the aid of the fourteenth amendment to the Constitution, the "general welfare" power of the Constitution, or the inherent right of the government to exercise the powers necessary for self-preservation. The power to punish frauds in choosing presidential electors, by the voters of the States, is essential to the national existence, and inheres in the supreme government. By the Constitution, a President and Vice-President are to be chosen for the term of four years, by electors appointed in each State in such manner as the legislature may direct. The mode directed by the legislatures now is by the qualified voters, by general ticket, in each State. When the mode is thus prescribed the Constitution enjoins upon each State in that mode to choose the electors: "Each State shall appoint in such manner," says the Constitution. If the electors are chosen by fraudulent votes the duty imposed by the Constitution is not complied with, and Congress may not only regulate and provide for this, but may devise a mode of ascertaining what the actual result of an election has been. The only inquiry, therefore, is, when the Constitution commands that the qualified voters of a State shall perform a given duty in a mode prescribed by Štate law, can Congress protect the citizens of the United States in the performance of that duty, punish those who would prevent it, and employ the means essential to accomplish the end and secure the national preservation? Undoubtedly all this may be done. Congress has done more than this. Not only as to the election of national, but of State officers, the act of February 25, 1865, made it a penal offence "by force, threat, menace, intimidation, or otherwise to prevent qualified voter of any State * from freely exercising the right of suffrage." * any The Constitution declares that "the members of the several State legislatures and all executive and judicial officers of the several States shall be bound by oath or affirmation to support this Constitution."-Art. 6. The first act passed by Congress was "an act to regulate the time and manner of administering" these oaths.23 The fugitive slave law was an instance in which the Supreme Court held that Congress had power to enforce duties in States prescribed by the Constitution. It is the "right" of the national government to have presidential electors chosen according to law. The Supreme Court has said that "the national government, in the 23 Farrar's Manual, 185, 187, 191, 294. The bill as originally reported by a committee, of which Mr. Madison was a member, contained a penal clause, which was subsequently omitted, not because it was unconstitutional, but upon the mistaken ground that the oath was a necessary qualification for office, the omission of which would render void all official acts." On the discussion of the bill it was objected that there was "no provision for empowering the government" to enact the law. This was conclusively answered by Mr. Lawrence, of New York, who said: Congress have this power. It is declared by the Constitution that its ordinances shall be the supreme law of the land. If the Constitution is the supreme law of the land, every part of it must partake of this supremacy; consequently every general declaration it contains is the supreme law. But then these general declarations cannot be carried into effect without particular regulations adapted to the circumstances; these particular regulations are to be made by Congress, who, by the Constitution, have power to make all laws necessary or proper to carry the declarations of the Constitution into effect. The Constitution likewise declares that the members of the State legislatures, and all officers, executive and judicial, shall take an oath to support the Constitution. This declaration is general, and it lies with the supreme legislature to detail and regulate it. H. Rep. Com 31-6 absence of all positive provisions to the contrary, is bound, through its proper departments, legislative, judicial, or executive, to carry into effect all the rights and duties imposed upon it by the Constitution." 24 The right of suffrage is one of the "privileges of citizens" placed under the protecting care of the government by the 14th article of the amendment to the Constitution, and the enjoyment of which Congress may "enforce by appropriate legislation." 25" It is not necessary, therefore, to resort to the power which Congress has to "make laws to perfect the Union, establish justice, * and promote the general welfare; 26 or to that inherent power of self-preservation which this and every government necessarily has. The committee report a bill in accordance with these views. SECTION 1. Be it enacted, &c., That if at any election for representative in the Congress of the United States or for electors of President and Vice-President, or delegate in Congress from any Territory, any person shall knowingly, 1st, personate and falsely assume to vote in the name of any other person, whether such other person shall then be living or dead, or if the name of the said other person be the name of a fictitious person;27 or, 2d, vote more than once at the same election for any candidate for the same office; or, 3d, vote at a place where he may not be lawfully entitled to vote; or, 4th, without having a lawful right to vote; or, 5th, falsely register as a voter; or, 6th, do any unlawful act to secure a right or an opportunity to vote for himself or other person; or, 7th, shall by force, threat, menace, intimidation, bribery, reward, or offer, or promise thereof, or otherwise unlawfully prevent any qualified voter of any State of the United States of America, 24 Prigg vs. Pa., 16 Peters, 636. Mr. Madison said: "The powers of the new government will act on the States in their collective characters."-Federalist, No. 40. See 2 Elliol, 362, 1 Wheaton, 304. * 25 Ch. J. Taney, in reference to Art. IV., says: "These privileges and immunities are placed under the guardianship of the general government."-16 Peters, 636; Farrur's Manual, 184, 198. "The language of the Constit on is imperative on these States as to the performance of many duties. It is imperative on the States to make laws, &c. The legislatures of the States are, in some respects, under the control of Congress; and, in every case, are under the Constitution bound by the paramount authority of the United States."-Martin vs. Hunter, 1 Wheaton R., 304.) Madison, in the Virginia convention, said: * * * Some States might regulate the elections on the principle of equality, and others might regulate them otherwise. * Should the people of any State, by any means, be deprived of the right of suffrage, it was judged proper that it should be remedied by the general government. 3 Elliott's Debates, 347. * * * In the Dred Scott case Chief Justice Taney said: There is not, it is believed, to be found in the theories of writers on government, or in any actual experi ment heretofore tried, an exposition of the term citizen which has not been considered as conferring the actual possession and enjoyment or the perfect right of acquisition and enjoyment of an entire equality of privileges, civil and political.-19 Howard, 476. And see Judge Kelley's speech in House of Representatives, February 27, 1866, and Gov ernor Boutwell's speech, January, 1869. The civil rights act of April 9, 1866, (14 Statutes at Large, 27.) was justified upon the principles of the Constitution, as the discussions on it show. Chief Justice Marshall has said that when Congress is intrusted with a power it may select the means for its execution. On the 5th of February, 1869, Mr. Sumner introduced in the Senate a bill making it a penal offence "to deter any citizen from the exercise or enjoyment of the rights of citizenship," &c., or for " any person engaged in preparing a register of voters, or in holding or conducting an election, to wilfully refuse to register the name, or to receive, count, return, or otherwise give the proper legal effect to the vote of any citizen," &c. It is just as competent to protect citizens in the enjoyment of their political as their "civil rights."-See speech of Hon. Samuel Shellabarger, July 25, 1866, in House of Representatives, (Globe, 1855-56, Appendix, p. 293, vol. 60,) on House bill 437, "To declare and protect the privileges and immunities of citizens of the United States in the several States." 26 Farrar's Manual, 181, 1, 31, 70, 118, 126, 291, 312, 426, 148, 282, 323. 27 See sec. 83, Stat. 6 Victoria, c. 18. |