27 F. Cas. 673 | U.S. Circuit Court for the District of Southern New York | 1870
(orally). The demurrer to the indictment now before the court, which was the subject of discussion at our yesterday’s session, presents two questions. The first is, whether the law of the United States under which the indictment is found is constitutional, or, in a more general form, whether it is a valid enactment, it being assailed, however only upon the ground that it is an infraction of the constitution of the United States. The second is, whether the indictment sufficiently charges an offense under the law. The court will not endeavor to discuss with great minuteness or particularity these two questions. The shortness of the interval which has elapsed since the argument closed has precluded the elaboration of an opinion upon the points which are raised.
Had the court entertained serious doubt of the correctness of the conclusions which they have reached, they would have taken time for greater deliberation, and, if it seemed to them fit, would have endeavored to throw light upon the subject by an extended discussion. But, entertaining no doubt, and deeming it unnecessary and unprofitable that the progress of the public business should be delayed for the purpose of indulging in an elaborate exposition of constitutional 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 conclusions which 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 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 present statute were before us for review.
Without reading the section under which this 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 a fraudulent attempt to register, by a person not having a legal right so to do, for the purposes 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, rests upon the single question—Has congress the power, under the constitution, to declare a fraudulent registration, or a 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 article 1 of the constitution of the United States, reference to which is pertinent to the inquiry before us, namely:
Section 2: “The house of representatives
Section 4, subdivision 1: “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, mate or alter such regulations, except as to the places of choosing senators.” •
Section 5, subdivision 1: “Each house shall be the judge of the elections, returns, and qualifications of its own members.”
Section S, last subdivision: “The 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.”
Does the act in question infringe the provision of the constitution which I have read, which provides that the electors in each state shall have the qualifications requisite for 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 a test of qualification—seeks to affirm the evidence of qualification—and, by so doing, ex vi termini, imposes qualification itself. We apprehend that that 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 power of 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 registration is imposed by the state law, (leaving the expediency or wisdom of such a law entirely to the judgment of the state), it shall be an offense against the laws of the United States to contribute, by fraud and 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; and that, to require that the elector shall have the qualification which the state law imposes, and make his voting or registration an offense 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 a 11 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 (article 2, § 1), that “every male citizen of the age of twenty-one years who shall have been a citizen for ten days, and an inhabitant of the state one year next preceding an election, and for the last four months a resident of the county where he may offer his vote, shall be entitled to vote, at such election, in the election district of which he shall at the time be 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 constitution of the state of New York, it is competent to prescribe. And the framers of this same constitution, not deeming this unqualified déclaration óf the qualification of voters to be infringed in any degree, have, in section 4 of the same article, provided, that laws shall be made for 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 state or to 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.
The next clause of the constitution to which we refer—section four, subdivision one—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
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 by which the constitution was framed, and 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 her popular vote should be the true expression of the opinions and choice of the electors. Hence, we say, this section four, subdivision one, of the first article of the constitution; and hence, as was aDly 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 first subdivision of the fourth section conferred power upon congress for that self-preservation. Time might some where be 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 conducted, either through an indifference of the states or otherwise, that the general government might find itself unsupported by the very people in whose will the foundations of the government rested. Hence, we say, the scheme pointed out by this first subdivision of 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 “the 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 everywhere, 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 that 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 discussions to which I have referred, was an illustration drawn from the supposition, that, possibly, the intervention of congress to secure that end might become necessary. It is important that no one who is not an elector shall be permitted to defeat the will of those who are, by interposing his vote at such elections. It is equally important that no one shall be permitted to deposit more votes than he is entitled to. And both these possible evils rest precisely upon the principle on which il 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 involves the power to prohibit the others. The power to make a regulation that shall secure to every man entitled to vote a safe and convenient exercise of his privilege, involves the power to
This brings within view another consideration connected with this subject—that, for eighty years, as is urged, congress has not seen fit to exercise the power which is conferred by the first subdivision of the fourth section. 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 referred, all breathe the confidence the framers of the constitution had. not only in the patriotism, but in the intelligence and wisdom and fidelity, of the people of the states. In the congress of the United States, which was convened and has continued to be convened from that time onward, that same confidence that the people of the 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 expositors of the constitution contemplated as possible and designed to anticipate and guard against, in which it would be 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 thattime has come, in which just apprehension warrants legislation—whether occasion, therefore, exists, which makes it best and wisest that congress shall exercise the power, is a question with which a tribunal of justice 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 eon-ferred by the constitution upon congress, which, for a time, remained dormant in their hands. There are powers which even now remain dormant in their hands; 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 without interference 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—until then, 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 co-exist 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 assume or to argue that the two cannot co-exist, that the legislation of the state does exist, and that, therefore, the act of congress cannot stand. It is reversing the order of argument. The true statement is this: If the two cannot co-exist, 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 was presented to us in the discussion.
I have anticipated, in what I have said, the force and effect of the last subdivision of the eighth section of the first article—the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” 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 such 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.
There is another section upon which I desire to make a single observation—section five, subdivision one: “Each house shall be the 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 in a high degree, if, indeed, we ought not to regard it as satisfactory alone considered, namely, that when the constitution confers
Our conclusion, then, is, that the section of the act in question upon which this indictment rests—-the twentieth section—which assumes the power of congress to make it an offence against the laws of the United States to fraudulently register, is a constitutional enactment.
The next inquiry is, whether the indictment in question is a sufficient indictment under the act. That question involves no constitutional considerations. It involves no principles that are not generally applicable to an ordinary inquiry into the sufficiency of indictments. And, in reviewing this subject, and looking at the history of adjudications, particularly in the United States courts, but sustained by the courts of the states of New -York and of Massachusetts, and others, we find ourselves in no doubt. This being a misdemeanor created and declared by statute, it Is sufficient to describe the statutory offence in the words of the statute itself—in the •words of the statute, adapted, of course, to the particular circumstances involved in the offence which is charged. This doctrine seems to us abundantly sustained by decisions. U. S. v. Bachelder [Case No. 14,4901; U. S. v. La Coste [Id. 15,548]; U. S. v. Pond [Id. 16,067]; U. S. v. O’Sullivan [Id. 15,974]; U. S. v. Wilson [Id. 16,730]; U. S. v. Mills, 7 Pet. [32 U. S.] 138; Campbell v. People, 8 Wend. 636. The ease of U. S. v. Wilcox [Id. 16,692], lias singular significance in reference to a branch of the discussion upon this point. In that case, a man was indicted for perjury under the statute, for taking a false oath before a commissioner, which indictment was held insufficient because the commissioner was described as “a commissioner of the United States’’—a description of so general a character as not to import an authority to administer an oath. But, notwithstanding the indictment was held insufficient, the court took occasion to say, that, setting forth the commission, or the particular powers of the commissioner, or the source whence they were derived, is not necessary, provided he is alleged to hold an office which apparently confers upon him the authority to administer the oath in the particular case specified, and that, that being done, the general allegation that he had competent authority to administer the oath, is sufficient.
This indictment, in our view, follows the words of the statute. Its departures are not properly departures. They are adaptations of the charge to the particular facts alleged, and, within every view, they. are in substantial conformity to the statute.
It is suggested by my associate, and very properly, that it becomes a necessary part of our judicial duty, in construing this indictment, and in applying the inquiry whether it is substantially in conformity with the statute, that we take judicial notice of the statutes of the state of New York, which are referred to in the indictment itself.
Upon both of the points, therefore, involved in the discussion, we are of the opinion that the indictment should be sustained, and that the demurrer of the defendant should be overruled.
No suggestion being made to the court that the defendant had any defence to the indictment, judgment absolute was rendered against him on the demurrer, and he was sentenced to two years’ imprisonment in the Albany county penitentiary, and to pay the costs of prosecution.