ity, who neglects or refuses to perform any duty in regard to such election required of him by any law of the United States, or of any state or territory thereof; or who violates any duty so imposed; or who knowingly does any acts thereby unauthorized, with intent to affect any such election, or the result thereof; or who fraudulently makes any false certificate of the result of such election in regard to such representative or delegate; or who withholds, conceals or destroys any certificate of record so required by law respecting the election of any such representative or delegate; or who neglects or refuses to make and return such certificate as required by law; or who aids, counsels, procures or advises any voter, person or officer to do any act by this or any of the preceding sections made a crime, or to omit to do any duty the omission of which is by this or any of such sections made a crime, or attempts to do so, shall be punished as prescribed in section 5511.”

"Sec. 5522. Every person, whether with or without any authority, power or process, or pretended authority, power or process, of any state, territory or municipality, who obstructs, hinders, assaults, or by bribes, solicitation or otherwise, interferes with or prevents the supervisors of election, or either of them, or the marshal or his general or special deputies, or either of them, in the performance of any duty required of them, or either of them, or which he or they, or either of them, may be authorized to perform by any law of the United States, in the execution of process or otherwise, or who, by any of the means before mentioned, hinders or prevents the free attendance and presence at such places of registration, or at such polls of election, or full and free access and egress to and from any such place of registration or poll of election, or in going to and from any such place of registration or poll of election, or to and from any room where any such registration or election or canvass of votes, or of making any returns or certificates thereof, may be had, or who molests, interferes with, removes or ejects from any such place of registration or poll of election, or of canvassing votes cast thereat, or of making returns or certificates thereof, any supervisor of election, the marshal or his general or special deputies, or either of them; or who threatens, or attempts, or offers so to do, or refuses or neglects to aid and assist any supervisor of election, or the marshal or his general or special deputies, or either of them, in the performance of his or their duties, when required by him or them, or either of them, to give such aid and assistance, shall be liable to instant arrest without process, and shall be punished by imprisonment not more than two years, or by a fine of not more than $3,000, or by both such fine and imprisonment, and shall pay the cost of the prosecution."

These portions of the Revised Statutes are taken from the act commonly known as the Enforcement Act, approved May 31, 1870, and entitled "An act to enforce the right of citizens of the United States to vote in the several states of this Union, and for other purposes," and from the supplement of that act, approved February 28, 1871. They relate to elections of members of the house of representatives, and were an assertion, on the part of congress, of a power to pass laws for regulating and superintending said elections, and for securing the purity thereof, and the rights of citizens to vote thereat peaceably and without molestation. It must be conceded to be a most important power, and of a fundamental character. In the light of recent history, and of the violence, fraud, corruption and irregularity which have frequently prevailed at such elections, it may easily be conceived that the exertion of the power, if it exists, may be necessary to the stability of our frame of government.

The counsel for the petitioners, however, do not deny that congress may, if it chooses, assume the entire regulation of the elections of representatives; but they contend that it has no constitutional power to make partial regulations. intended to be carried out in conjunction with regulations made by the states. The general positions contended for by the counsel of the petitioners are thus stated in their brief:

"We shall attempt to establish these propositions: 1. That the power to make regulations as to the times, places and manner of holding elections for representatives in congress, granted to congress by the constitution, is an exclusive power when exercised by congress. 2. That this power, when so exercised, being exclusive of all interference therein by the states, must be so exercised as not to interfere with or come in collision with regulations presented in that behalf by the states, unless it provides for the complete control over the whole subject over which it is exercised. 3. That when put in operation by congress it must take the place of all state regulations of the subject regulated, which subject must be entirely and completely controlled and provided for by congress."

§ 330. The power of congress to regulate elections of senators and representatives.

We are unable to see why it necessarily follows that, if congress makes any regulations on the subject, it must assume exclusive control of the whole subject. The constitution does not say so. The clause of the constitution under which the power of congress, as well as that of the state legislatures, to regulate the election of senators and representatives arises, is as follows: "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." It seems to us that the natural sense of these words is the contrary of that assumed by the counsel of the petitioners. After first authorizing the states to prescribe the regulations, it is added, "The congress may at any time, by law, make or alter such regulations." "Make or alter:" What is the plain meaning of these words? If not under the prepossession of some abstract theory of the relations between the state and national governments, we should not have any difficulty in understanding them. There is no declaration that the regulations shall be made either wholly by the state legislatures or wholly by congress. If congress does not interfere, of course they may be made wholly by the state; but if it chooses to interfere, there is nothing in the words to prevent its doing so, either wholly or partially. On the contrary, their necessary implication is that it may do either. It may either make the regulations, or it may alter them. If it only alters, leaving, as manifest convenience requires, the general organization of the polls to the state, there results a necessary co-operation of the two governments in regulating the subject. But no repugnance in the system of regulations can arise thence; for the power of congress over the subject is paramount. It may be exercised as and when congress sees fit to exercise it. When exercised, the action of congress, so far as it extends and conflicts with the regulations of the state, necessarily supersedes them. This is implied in the power to "make or alter.”

§ 331. It is not necessary to the power of congress to regulate elections that its exercise should be exclusive of state regulations.

Suppose the constitution of a state should say, "The first legislature elected under this constitution may by law regulate the election of members of the two

houses; but any subsequent legislature may make or alter such regulations,”. could not a subsequent legislature modify the regulations made by the first legislature without making an entirely new set? Would it be obliged to go over the whole subject anew? Manifestly not: it could alter or modify, add or subtract, in its discretion. The greater power, of making wholly new regulations, would include the lesser, of only altering or modifying the old. The new law, if contrary or repugnant to the old, would so far, and so far only, take its place. If consistent with it, both would stand. The objection, so often repeated, that such an application of congressional regulations to those previously made by a state would produce a clashing of jurisdictions and a conflict of rules, loses sight of the fact that the regulations made by congress are paramount to those made by the state legislature; and if they conflict therewith, the latter, so far as the conflict extends, cease to be operative. No clashing can possibly arise. There is not the slightest difficulty in a harmonious combination into one system of the regulations made by the two sovereignties, any more than there is in the case of prior and subsequent enactments of the same legislature. Congress has partially regulated the subject heretofore. In 1842 it passed a law for the election of representatives by separate districts; and, subsequently, other laws fixing the time of election, and directing that the elections shall be by ballot. No one will pretend, at least at the present day, that these laws were unconstitutional because they only partially covered the subject.

§ 332. Instances of concurrent regulations by state and national authority. The peculiarity of the case consists in the concurrent authority of the two sovereignties, state and national, over the same subject-matter. This, however, is not entirely without a parallel. The regulation of foreign and interstate commerce is conferred by the constitution upon congress. It is not expressly taken away from the states. But where the subject-matter is one of a national character, or one that requires a uniform rule, it has been held that the power of congress is exclusive. On the contrary, where neither of these circumstances exist, it has been held that state regulations are not unconstitutional. In the absence of congressional regulation, which would be of paramount authority when adopted, they are valid and binding. This subject was largely discussed in the case of Cooley v. Board of Wardens of Port of Philadelphia, 12 How., 299 (§§ 1541-47, infra). That was a case of pilotage. In 1789 congress had passed a law declaring that all pilots should continue to be regulated in conformity with the laws of the states, respectively, wherein they should be. Hence each state continued to administer its own laws, or passed new laws for the regulation of pilots in its harbors. Pennsylvania passed the law then in question in 1803. Yet the supreme court held that this was clearly a regulation of commerce, and that the state laws could not be upheld without supposing that, in cases like that of pilotage, not requiring a national and uniform regulation, the power of the states to make regulations of commerce, in the absence of congressional regulation, still remained. The court held that the power did so remain, subject to those qualifications; and the state law was sustained under that view.

Here, then, is a case of concurrent authority of the state and national governments, in which that of the latter is paramount. In 1837 congress interfered with the state regulations on the subject of pilotage, so far as to authorize the pilots of adjoining states, separated only by navigable waters, to pilot ships and vessels into the ports of either state located on such waters. It has since made various regulations respecting pilots taking charge of steam vessels, im

posing upon them peculiar duties and requiring of them peculiar qualifications. It seems to us that there can be no doubt of the power of congress to impose any regulations it sees fit upon pilots, and to subject them to such penalties for breach of duty as it may deem expedient. The states continue in the exercise of the power to regulate pilotage subject to the paramount right of the national government. If dissatisfied with congressional interference, should such interference at any time be imposed, any state might, if it chose, withdraw its regulations altogether, and leave the whole subject to be regulated by congress. But so long as it continues its pilotage system, it must acquiesce in such additional regulations as congress may see fit to make.

§ 333. Regulations of congressional elections may be made by state and national authority concurrently, the latter being paramount.

So in the case of laws for regulating the elections of representatives to congress. The state may make regulations on the subject; congress may make regulations on the same subject, or may alter or add to those already made. The paramount character of those made by congress has the effect to supersede those made by the state, so far as the two are inconsistent, and no farther. There is no such conflict between them as to prevent their forming a harmonious system, perfectly capable of being administered and carried out as such. As to the supposed conflict that may arise between the officers appointed by the state and national governments for superintending the election, no more insuperable difficulty need arise than in the application of the regulations adopted by each respectively. The regulations of congress being constitutionally paramount, the duties imposed thereby upon the officers of the United States, so far as they have respect to the same matters, must necessarily be paramount to those to be performed by the officers of the state. If both cannot be performed, the latter are pro tanto superseded and cease to be duties. If the power of congress over the subject is supervisory and paramount, as we have seen it to be, and if officers or agents are created for carrying out its regulations, it follows as a necessary consequence that such officers and agents must have the requisite authority to act without obstruction or interference from the officers of the state. No greater subordination, in kind or degree, exists in this case than in any other. It exists to the same extent between the different officers appointed by the state, when the state alone regulates the election. One officer cannot interfere with the duties of another, or obstruct or hinder him in the performance of them. Where there is a disposition to act harmoniously, there is no danger of disturbance between those who have different duties to perform. When the rightful authority of the general government is once conceded and acquiesced in, the apprehended difficulties will disappear. Let a spirit of national as well as local patriotism once prevail, let unfounded jealousies cease, and we shall hear no more about the impossibility of harmonious action between the national and state governments in a matter in which they have a mutual interest.

§ 334. Congress has power to punish those who obstruct officers appointed under its laws to secure honest elections.

As to the supposed incompatibility of independent sanctions and punishments imposed by the two governments, for the enforcement of the duties required of the officers of election, and for their protection in the performance of those duties, the same considerations apply. While the state will retain the power of enforcing such of its own regulations as are not superseded by those adopted by congress, it cannot be disputed that if congress has power to make

regulations, it must have the power to enforce them, not only by punishing the delinquency of officers appointed by the United States, but by restraining and punishing those who attempt to interfere with them in the performance of their duties; and if, as we have shown, congress may revise existing regulations, and add to or alter the same as far as it deems expedient, there can be as little question that it may impose additional penalties for the prevention of frauds committed by the state officers in the elections, or for their violation of any duty relating thereto, whether arising from the common law or from any other law, state or national. Why not? Penalties for fraud and delinquency are part of the regulations belonging to the subject. If congress, by its power to make or alter the regulations, has a general supervisory power over the whole subject, what is there to preclude it from imposing additional sanctions and penalties to prevent such fraud and delinquency?

$335. The national government as well as the state government has an interest in fair elections of representatives and has the power to suppress frauds.

It is objected that congress has no power to enforce state laws or to punish state officers, and especially has no power to punish them for violating the laws of their own state. As a general proposition this is undoubtedly true; but when in the performance of their functions state officers are called upon to fulfil duties which they owe to the United States as well as to the state, has the former no means of compelling such fulfilment? Yet that is the case here. It is the duty of the states to elect representatives to congress. The due and fair election of these representatives is of vital importance to the United States. The government of the United States is no less concerned in the transaction than the state government is. It certainly is not bound to stand by as a passive spectator when duties are violated and outrageous frauds are committed. It is directly interested in the faithful performance, by the officers of election, of their respective duties. Those duties are owed as well to the United States as to the state. This necessarily follows from the mixed character of the transaction, state and national. A violation of duty is an offense against the United States, for which the offender is justly amenable to that government. No official position can shelter him from this responsibility. In view of the fact that congress has plenary and paramount jurisdiction over the whole subject, it seems almost absurd to say that an officer who receives or has custody of the ballots given for a representative owes no duty to the national government which congress can enforce; or that an officer who stuffs the ballot-box cannot be made amenable to the United States. If congress has not, prior to the passage of the present laws, imposed any penalties to prevent and punish frauds and violations of duty committed by officers of election, it has been because the exigency has not been deemed sufficient to require it, and not because congress had not the requisite power.

§ 336. The power of congress to enforce state laws on the subject of elections and to punish their violation.

The objection that the laws and regulations, the violation of which is made punishable by the acts of congress, are state laws and have not been adopted by congress, is no sufficient answer to the power of congress to impose punishment. It is true that congress has not deemed it necessary to interfere with the duties of the ordinary officers of election, but has been content to leave them as prescribed by state laws. It has only created additional sanctions for their performance, and provided means of supervision in order more effectually to secure such performance. The imposition of punishment implies a prohibi