power to each, and that if, under section 4 of article I of the constitution of the United States above quoted, state legislatures have from the foundation of the government, and without objection, provided the judges and inspectors of elections for federal officers, and have determined that the vote shall be viva voce or by ballot, as they thought best, that the congress of the United States, under the same clause, may do the same thing. The constitution provides that there shall be a house of representatives, and further, that congress may regulate the manner of the election of the members of it. An election, within the meaning of the constitution, is the result of the free expression of the choice of the electors at the time and place appointed by law, and the declaration of the result by those appointed for the purpose. The manner of an election is nothing more nor less than the mode of effecting this purpose. This includes the power to appoint the persons to hold it; for if the election is determined by law to be by ballot, they must be duly authorized to receive the vote. If it be viva voce, there must be some one to record the names of those whom the electors announce as their choice. There must be some one to count the votes, else the choice of the electors could never be ascertained. The states prescribe the qualifications of the electors. To receive the votes of such qualified voters only, and to provide that all such qualified persons who offer to vote do so, is to hold an election. The mode of effecting this result is the manner of the election, which the states have all along regulated, and do in many particulars now regulate, but which regulation, to some extent, congress has itself undertaken to make and alter. But it is argued that even admitting the power of congress to appoint, as the states have heretofore done, the officers to conduct a congressional election, there is no power given to congress to appoint peace officers to keep the peace upon the soil of the states. Yet section 2022 provides that these marshals and deputies shall keep the peace and preserve order at the polls.

$351. Regulation of elections.

To regulate the manner of an election is to provide the means by which each elector expresses his choice freely and without hindrance or obstruction. To say that the states may, under this provision of the fourth section, appoint judges of federal elections, designate the place where they shall sit during the day of the election, and that they cannot remove obstructions which on that day prevent the electors from reaching them, would be strange indeed. If the states can do so, the congress may, for the same powers by the constitution are given to each as to congressional elections. As an election, as we have above said, is the declared expression of the choice of the qualified electors, it is quite as necessary that no one but qualified electors should, as that they should themselves, be able to do so. Hence the regulations respecting registration are a part of the manner of the election, for they furnish a method by which those who hold the poll may discriminate between qualified and disqualified

voters.

§ 352. Reasons for the constitutional provision.

The extent of the power given to the congress by this fourth section is readily seen from the reasons given for its adoption at the time of framing the constitution. Alexander Hamilton, in No. 59 of the Federalist, gives as a reason for its adoption, "that every government ought to contain in itself the means of its own preservation." According to his view, whatever was necessary to be done to enable the qualified voters of a state to freely express their choice for a representative in congress, the congress under the fourth section

has a right to provide. If, by any reason of hostility, the state determined to destroy the federal government by preventing the election of representatives in congress, either by a law forbidding its citizens to vote for such representatives, or by failing to regulate the time, place and manner of such election, since the federal government could not exist without a house of representatives, the power was given to congress to make and alter such time, place and manner. The federal government has as much right to exist since the adoption of the constitution which created it as the state governments have; whatever the latter may do to secure a full and free expression of the choice of state electors for candidates for state officers, the United States may do in 'respect to representatives in congress. Whether the hindrance or obstruction to a free expression of the choice of qualified electors for representatives in congress comes from an open act of hostility of the state or from the neglect to provide such a manner of election as to guard against such hindrance and obstruction, or from organized bands of its inhabitants conspiring together for the purpose, or from the act of one evil-disposed person only, the congress has the right, by virtue of the power given by this section, for the preservation of the national existence, which depends, as the life of all representative forms of government must, upon the freedom and purity of elections, to establish such regulations respecting the manner of conducting the election as will, in its judgment, prevent and remove them.

§ 353. Discretion of marshals in exercising their functions under sections 2021, 2022, Revised Statutes.

The marshal, therefore, and his special deputies were constitutionally charged with the duty of keeping the peace and of preserving order at the polls of this congressional election, and the question which arises is, Were they justified, upon the facts, in arresting Anton Schlauch, who was charged with being intoxicated, turbulent and noisy? We think the offense of Schlauch, even as stated by the deputy marshals, was but slight, but a large discretion must be given to an officer charged with the duty of keeping order at an election precinct. His duty is to prevent a disturbance as well as to suppress disorder after it has arisen, and as in this case the deputy used no harsh measures, and might well have supposed that the facts proved respecting the conduct of Schlauch would create a breach of the peace then, though at another time, at a place where there was less excitement, such conduct would have done no harm, and might have been passed over as the boisterous mirth of a jovial man excited by drink, yet the polling-place was not a proper place for its display. We are of opinion that the deputy was justified in his removal from the vicinity of the polling-place. The exercise of the elective franchise 'is not a frolic; it is the highest and most solemn duty of the citizen, and the deputy marshals appointed to keep the peace and preserve order at the time and place of its exercise will be sustained in preserving such a state of affairs at the polls as will enable the oldest, weakest, most infirm or timid of the electors to perform that duty. But by section 2022 of the Revised Statutes, the marshal and his special deputies are not only charged with the duty of keeping the peace and preserving order, but they are to prevent fraudulent voting.

Harris, one of the parties arrested, was a colored man. He was holding tickets headed by the devices of the republican ticket, with the names of the democratic candidates imprinted on them, and offering them to the colored voters as they approached the poll. Many of the voters were colored men who could not read. They were guided in their knowledge of the tickets by the

pictures upon them, and they were offered to them by one of their own color. To give an ignorant elector a ticket with this device was, if he desired to vote for the republican and not the democratic candidate, to deprive him of his vote and to put a vote in the box for the opposing candidate by fraud. The deputy, we think, was justified in removing this cheat from the vicinity of the pollingplace, not only because he was directed to prevent fraudulent voting, but because had this trick been discovered by the opposing party, it might then have led to an attempt to take his tickets from him, and to a consequent breach of the peace.

We have come to the conclusion that the act of congress under which these marshals and deputies were appointed is abundantly authorized by the fourth section of article I of the constitution of the United States, and that the conduct of the deputy marshals in the exercise of the powers conferred on them was both justifiable and discreet. We shall refuse the motion to quash, and enter an order discharging the petitioners.

§ 354. Powers of congress.— Under the power to regulate the time, place and manner of holding elections for representatives, congress may make such regulations that all the electors in every state shall have full and fair opportunity to declare their will. United States v. Quinn,* 8 Blatch., 48. See § 321. § 355. The failure to exercise the power hitherto is no argument against its existence; and the grant of power is in nowise impaired by the fact that the states have legislated upon the subject. Ibid.

§ 356. Congress has power to interfere in the protection of voters at federal elections, and this power existed before the adoption of the recent amendments. United States v. Crosby, 1 Hughes, 448.

$357. As an elector, qualified to vote by the laws of the state, derives his right to vote for members of congress from section 2 of article 1 of the constitution of the United States, congress has power to protect him in that right. United States v. Goldman, 3 Woods, 187. See $321.

§ 358. Section 4 of article 1 of the constitution of the United States, declaring that congress may, at any time, by law, make regulations prescribing the time, place, and manner of holding elections for senators and representatives, authorizes congress to maks any law the purpose of which is to enable the voter to make a free and intelligent choice, and to express that choice freely at the ballot-box. Ibid.

§ 359. Section 5520 of the Revised Statutes, which declares it to be an offense "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 the election of any lawfully qualified person as an elector for president or vice-president of the United States, 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," is constitutional as an authorized exercise of the power of congress given by sections 2 and 4 of article 1, and the last clause of section 8 of the same article, of the constitution of the United States. Ibid.

§ 360. Appointment of supervisors.— The act of congress providing for the appointment by the courts of supervisors of elections does not impose upon the courts the performance of non-judicial functions, and its constitutionality cannot be questioned on that ground. In re Citizens of Cincinnati,* 2 Flip., 228. See § 322, 324.

§ 361. Congress has the right to regulate the election of its own members, and the act providing for the appointment of supervisors to attend and witness the holding of the elections and the counting of the votes does not invade the rights of states, and is constitutional. Ibid.

§ 362. Civil rights bill.- Under the nineteenth section of the Civil Rights Act of May 31, 1870 (16 Statutes at Large, 144), it is not necessary, in order to constitute the offense, that the person complaining should be entirely prevented from voting; it is sufficient if he was hindered, or, as the statute puts it, that he was not allowed to vote "freely." So where a line of voters were waiting their turn to vote at an election, and were attacked and driven from the room, but afterwards returned and voted, it was held that the parties making the attack were guilty under this section. United States v. Souder, 2 Abb., 467. See § 1601.

§ 363. The nineteenth section of the Civil Rights Act of May 31, 1870 (16 Statutes at Large, 144), applies to elections for members of congress, and was intended to conserve their freedom and purity; and the fourth section of the same act applies to the election of state, county and municipal officers; and the words, "unlawfully preventing a voter from freely exercising the right of suffrage," in the nineteenth section, may be construed to mean "to unlawfully prevent him from voting," without bringing it into conflict with the fourth section. Ibid. § 364. Under section 2 of the Civil Rights Act of May 31, 1870 (16 Statutes at Large, 140), what amounts to a refusal or wilful omission to furnish to citizens an opportunity to perform the prerequisite required by statute to enable a citizen to vote, if challenged, depends upon the duties imposed upon the officers of election in that respect by the laws of the states. McKay v. Campbell, 2 Abb., 124. See IX, infra.

SUMMARY

3. Taxation.

[See REVENUE; also X, 5, infra; §§ 848, 1026.]

Power to establish a bank, § 365.- States cannot tax agencies of federal government, §§ 366–370.- Power to tax bank circulation, § 371.- Direct taxes, § 372.— Liability of personal property, § 373.— Courts cannot declare tax excessive, § 374.— Power of congress to supply a currency. SS 371, 375.- Tux on debts due non-residents, $ 376.-State can only tax property in the state, § 377.- State tax on foreign-held bonds, $§§ 377-379.- Liability of corporations, § 379.

§365. Congress has authority, as incidental to its power to carry on the fiscal operations of the government, to establish a bank; and the act creating the United States Bank and its branches is constitutional. McCulloch v. Maryland, § 380-398. See BANKS; CORPORATIONS. § 366. The sovereign powers of taxation of the states do not extend to the means employed by congress to carry its powers into execution. Therefore a state tax upon a branch of the United States Bank is an infringement upon federal sovereignty and void. Ibid. See REVENUE.

§ 367. A state has no power by taxation or otherwise to retard, impede or burden the operation of the laws of congress enacted to carry into execution the powers vested in the general government. Weston v. City Council of Charleston, §§ 399-407.

$368. The power of taxation possessed by a state in its sovereign capacity does not extend to taxation of money invested in United States stock or bonds, such taxation being in violation of the provision granting power to congress "to borrow money on the credit of the United States," as having a tendency to obstruct congress in carrying out such power. Ibid. § 369. A state tax upon the capital of a bank, part or the whole of which is constituted by stock or bonds of the United States, is a tax upon the power of congress to borrow money to carry on the operations of the federal government, and therefore void. Bank of Commerce v. New York City, §§ 408-413; Bank Tax Case, SS 414-416.

$370. The mere fact that congress has extended aid to a railroad corporation organized under state laws, both in the shape of large money advances and land grants, made contracts with it for services for the general government, and that the government has a limited interest in its income, does not exempt the railroad from state taxation, there being nothing in either the charter or the acts of congress indicative of such an exemption. Thomson v. Pacific Railroad, § 417-419.

§ 371. Congress may, in its power to regulate the currency, restrain all currency not issued under its authority, or tax circulation otherwise issued, thongh it be of a state bank. Veazie Bank . Fenno, § 420-433. See MONEY.

§ 372. Direct taxes, referred to in the constitution, are limited to taxes on lands and polls. Ibid.

$ 373. Personal property is not the subject of taxation, except by general valuation and assessment. Ibid.

$ 374. The courts have no right to pronounce a tax laid by congress excessive. Ibid. $375. Under the power to emit bills of credit, congress can supply a currency for the whole country. Ibid.

376. A state may tax, in the hands of one of its resident citizens, a debt held by him upon a resident of another state, and evidenced by the bond of the debtor, secured by deed of trust or mortgage upon real estate situated in the state in which the debtor resided. Kirtland v. Hotchkiss, 434-436.

$377. The taxing power of a state is limited to persons, property and business within its jurisdiction. State Tax on Foreign-held Bonds, 437-446.

§ 378. Bonds issued by a railroad company are the property of the holder, and so far as they are held by non-residents they are beyond the jurisdiction of the state and its taxing power, although secured by mortgage on lands within the state; and an act requiring the treasurer of the company to retain five per cent. of the interest due to the bondholders for state taxes, is unconstitutional. Ibid.

$379. Corporations may be taxed upon their property and business, but the debts and obligations of a corporation are the property of its creditors, and can only be taxed in the hands of such creditors, and follow their domiciles, even though such obligations are secured by mortgage of real estate in the state where the imposition of the tax is attempted. Ibid. [NOTES.-See § 447-470.]

M'CULLOCH v. STATE OF MARYLAND.

(4 Wheaton, 316-439. 1819.)

ERROR to the Court of Appeals of Maryland.

STATEMENT OF FACTS.- The question in this case arises on the validity of a tax imposed by an act of Maryland on a branch of the Bank of the United States. The Bank of the United States was incorporated by act of congress of April 10, 1816, and a branch bank was established at Baltimore. The Maryland act of February 11, 1818, was entitled "An act to impose a tax on all banks, or branches thereof, in the state of Maryland, not chartered by the legislature." Opinion by MARSHALL, C. J.

In the case now to be determined, the defendant, a sovereign state, denies the obligation of a law enacted by the legislature of the Union; and the plaintiff, on his part, contests the validity of an act which has been passed by the legis lature of that state. The constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, as marked in that constitution, are to be discussed; and an opinion given which may essentially influence the great operations of the government. No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility involved in its decision. But it must be decided peacefully or remain a source of hostile legislation, perhaps of hostility of a still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On the supreme court of the United States has the constitution of our country devolved this important duty.

The first question made in the cause is, has congress power to incorporate a bank? It has been truly said that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognized by many successive legislatures, and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation. It will not be denied that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this. But it is conceived that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people are to be adjusted, if not put at rest by the practice of the government, ought to receive a considerable impression from that practice. An exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.

The power now contested was exercised by the first congress elected under